•"ity  of  CaJiforni."^ 

JRViNE 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

IRVINE 

GIFT  OF 


LEWIS  HANKE 


LIBRARY  OF  CONGRESS 


GUIDE 


LAW  AND  LEGAL  LITERATURE 


OF 


SPAIN 


PREPARED  UNDER  THE  DIRECTION  OF 

EDWIN  M.  BORCHARD 

LAW  LIBRARIAN 
BY 

THOMAS  W.  PALMER,  Jr. 

OF  THE  BIRMINGHAiM,  ALA..  BAR 
SHELDON  FELLOW,  HARVARD  UNIVERSITY,  1913-1914 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1915 


S7 


L.  C.  card,  15—26001 


This  volume  is  for  sale  by  the 

S0PEBINTENDENT    OF    DOCUMENTS 

Government  Printing  Office 
Washington,  D.  C. 

Price,  50  cents 


PREFACE 


The  Library  of  Congress  has  endeavored  to  meet  the  growing 
demand  on  the  part  of  lawyers,  legislators  and  students  for  a 
knowledge  of  the  law  and  legal  institutions  of  foreign  countries 
by  systematically  acquiring  the  best  legal  literature  of  the 
civilized  states  of  the  world.  In  order  to  make  this  material 
more  readily  accessible  to  the  investigator  of  foreign  and  com- 
parative law,  the  enterprise  of  pubUshing  guides  to  foreign 
law  was  begun. 

This  volume  is  the  third  in  the  series,  having  been  preceded 
by  the  Bibliography  oj  international  law  and  continental  law 
(i9i3),and  the  Guide  to  the  law  and  legal  literature  of  Germany 
(1912).  The  Library  is  enabled  to  publish  the  volume  at  this 
time  through  the  sympathetic  cooperation  of  the  Harvard 
University  Law  School.  The  University  awarded  to  Mr. 
Thomas  W.  Palmer,  Jr.  a  Sheldon  fellowship  for  the  year  1913- 
1914,  to  be  devoted  to  the  preparation  of  this  guide.  Mr. 
Palmer  spent  several  months  in  preparatory  study  in  the  Law 
Division  of  the  Library  of  Congress  and  then  visited  Spain, 
where  his  personal  studies  were  aided  by  consultation  with  the 
foremost  legal  authorities  of  that  country.  In  the  plan  of 
this  work,  the  arrangement  adopted  in  the  guide  to  the  law 
of  Germany  has  been  followed. 

In  the  preparation  of  the  work  the  threefold  aim  of  the 
undertaking  of  publishing  these  guides  has  been  preserved, 
namely :  first,  to  furnish  the  lawyer  and  the  student  of  com- 
parative law  with  information  as  to  the  private  and  public  law 
of  the  country;  secondly,  to  acquaint  the  legislator  with  the 
recent  development  of  legislation,  particularly  that  designed 
to  meet  the  social  and  economic  problems  of  the  day;  and, 
thirdly,  to  furnish  the  jurist  and  historian  with  a  guide  to  the 
contributions  to  the  history,  theory  and  the  philosophy  of  law. 


4  PREFACE 

From  practically  all  these  points  of  view  Spain  offers  a 
fruitful  field  for  study.  It  possesses  one  of  the  oldest  de- 
veloped systems  of  law — a  composite  of  Roman,  Germanic  and 
Arabic  elements,  with  a  strong  infusion  of  canon  law;  it  is 
growing  in  industrial  and  commercial  importance;  it  is  par- 
ticipating actively  in  the  legislative  movement  for  social  and 
economic  reform;  and — of  particular  interest  to  us — it  is  the 
mother  of  the  legal  system  of  a  large  part  of  the  world  in 
which  we  have  vital  interests.  In  the  insular  possessions  of 
the  United  States  we  have  been  brought  into  intimate  contact 
with  Spanish  law  and  are  there  witnessing  one  of  those  curious 
and  interesting  phenomena  of  legal  history,  the  blending  of 
two  systems  of  law.  In  Spanish-America,  which  socially, 
industrially,  and  commercially  is  awakening  a  constantly 
growing  interest  on  the  part  of  the  United  States,  the  seed 
laid  by  the  Spanish  colonizers  has  continued  to  germinate  and 
flourish  long  after  political  control  ceased.  The  present  guide, 
indeed,  is  intended  to  constitute  the  foundation  for  a  Guide  to 
the  law  and  legal  literature  of  Latin  America  which  is  now  in 
course  of  preparation. 

The  special  thanks  of  the  Library  are  due,  among  others,  to 
the  following  gentlemen,  who  by  their  kind  and  sympathetic 
assistance  have  rendered  an  invaluable  service  to  the  enter- 
prise: Francisco  Giner  de  los  Rios,  Jos^  Varon  y  Caballero, 
Alfonso  Cabello  y  Guillen  de  Toledo,  Felipe  Clemente  de  Diego, 
Eduardo  de  Hinojosa,  Rafael  Altamira,  Constancio  Bernaldo 
de  Quiros,  Emilio  Minana  y  Villagrasa,  Manuel  Gonzalez 
Hontoria,  Marques  de  Olivart,  Joaquin  Ferndndez  Prida, 
Adolfo  Posada,  Leopoldo  Palacios  Morini,  Manuel  Torres  v 
Campos,  Ramon  Sanchez  de  Ocana,  Ramon  Carande  Thovar, 
Fernando  Berenguer,  and  to  various  librarians,  especially  the 
librarian  of  the  Colegio  de  Abogados  of  Madrid  and  the  Chief 
of  the  Index  Division  of  the  National  Library. 

Edwin  M.  Borchard 

Law  Librarian 

Herbert  Putnam 

Librarian  of  Congress 

Washington,  D.  C,  December,  1914 


CONTENTS 


Page. 

Preface 3 

Contents 5 

Bibliography y 

Legislation g 

Court  reports 12 

General  works .  15 

Legal  education ...  ig 

Jurisprudence  and  philosophy  of  law.  .  .                             19 

Legal  history 26 

Civil  code : 

History 38 

Legislative  history 38 

Foral  sj'stems  and  customary  law 42 

Contents 45 

General  literature 4y 

Individual  parts  of  the  code  and  related  subjects 52 

Persons 52 

Property — Literary  and  industrial  property 54 

Eminent  domain jy 

Succession  and  descent 58 

Obligations  and  contracts 59 

Mortgages 60 

Commercial  law: 

Commercial  code: 

History 63 

Contents 64 

General  litcratiue 65 

Special  and  related  subjects: 

Stock  exchanges yo 

Banking  law yi 

Commercial  associations y2 

Railroads  and  public  service  companies y3 

Insurance ye 

Bills  and  notes yg 

Maritime  law yy 

Consular  law yg 

Bankruptcy yg 

Limitation  of  actions 81 

Commercial  courts 81 

Chambers  of  commerce 82 

Commercial  treaties 83 

5 


6  CONTENTS 

Civil  procedure:  Pago. 

Code  of  civil  procedure 83 

General  1  iterature 85 

Judiciar>'  act 87 

Notarial  law 89 

Costs  and  fees 91 

Criminal  law 92 

Criminal  procedure 97 

Military  criminal  law 103 

Criminology  and  reform  of  criminal  law 106 

Constitutional  law 109 

Administrative  law in 

Municipal  and  provincial  administration 113 

Elections 115 

Waters 115 

Hunting  and  fishing 116 

Mines 116 

Public  finance 118 

Poor  laws 119 

Labor  legislation 120 

Workmen's  insurance  and  employers'  liability 123 

Industrial  courts  and  arbitration  commissions 127 

Labor  organizations 128 

Miscellaneous  labor  laws 129 

International  law: 

Public  international  law 130 

Conflict  of  laws 133 

Colonial  law 136 

Canon  law 139 

Glossary 143 

Index 164 


GUIDE  TO  THE   LAW  AND  LEGAL 
LITERATURE  OF  SPAIN 


BIBLIOGRAPHY 

The  most  useful  bibliography  of  the  legal  literature  of  Spain, 
up  to  the  date  of  its  publication,  is  the  work  of  Torres  Campos  ' 
in  two  volumes.  Volume  one  extends  over  the  period  from 
1800  to  1880,  and  volume  two  from  1880  to  1896.  The  latter 
also  contains  useful  indices,  alphabetically  arranged,  of 
authors  and  of  subjects  covering  both  volumes.  As  the 
author  states  in  the  introduction,  this  work  is  complementary 
to  his  "studies"-  on  Spanish  and  foreign  legal  bibliography 
which  was  rewarded  with  a  gold  medal  by  the  ]\Iadrid  Acad- 
emy of  Notaries  in  the  public  competition  of  1876.  It  also 
enjoys  the  distinction  of  being  the  first  modern  bibliography 
of  its  kind  published  in  Europe.  It  includes  general  and 
special  legal  bibliographies  and  is  arranged  according  to 
subject  matter  with  subdivisions  by  "country." 

The  history  of  Spanish  legal  literature  is  discussed  by  Urcna^ 
in  a  learned  but  extremely  abstruse  work  published  in  1906. 
The  distinguished  author,  confining  himself  to  a  period  ending 
at  about  the  fourteenth  century,  really  presents  a  history  of 
legal  science  and  offers  a  source  book  of  early  Spanish  law 
and  legal  philosophy.  Useful  bibliographic  notes  for  nearly 
every  branch  of  law  are  included  in  the  recent  (1914)  work 

'  Torres   Campos,    Manuel.     Bibliografia   espanola   contemporanea   del 
derecho  y  de  la  politica.  .  .  .  1800-1880  .  .  .  Madrid,  Fernando  Fd, 
1883.     208    p. 
Same.     1881-1896.     Madrid,  Fernando  F€,  1898.     16S  p. 
2  Torres  Campos,  Manuel.    Estudios  de  bibliografia  espaiiola  y  extranjera 
del  derecho  y  del  notariado.     Madrid,  Eduardo  Cuesta,  iS;8.    261  p. 
'  Ureiia  y  Smenjaud,    Rafael   de.     Historia  de   la   litcratura  jiu-idica 
espaiiola.     2d  ed.     Madrid,  I.  Moreno,  1906.     2  v. 

7 


8  GUIDE   TO   THE    LAW    OF   SPAIN 

of  Posada  and  other  collaborators,  entitled  "Every  day  law" 
{infra,  p.  i8). 

Several  Spanish  legal  bibliographies  with  descriptive  notes 
have  appeared  in  the  English  language.  The  "Bibliography 
of  international  law  and  continental  law"  published  in  1913 
by  Dr.  Borchard '  of  the  Library  of  Congress  includes  a 
section  devoted  to  the  legal  bibliographies  of  Spain.  A 
bibliography  of  early  legal  literature  is  contained  in  the  cata- 
logue of  books  on  foreign  law  presented  in  1847  by  Charles 
Purton  Cooper  to  the  Society  of  Lincoln's  Inn.^  Full  descrip- 
tive notes  are  given.  The  lengthy  introduction  in  Schmidt's 
"The  civil  law  of  Spain  and  Mexico"  (infra,  p.  37)  is  of 
bibliographic  value  and  of  especial  use  are  the  notes  on  the 
early  codifications  and  compilations.  The  section  on  Spain  by 
Altamira  in  the  first  volume  of  the  Continental  Legal  History 
Series  (infra,  p.  36),  while  covering  the  same  ground,  is  prob- 
ably more  useful  and  authoritative. 

Kirchenheim's  Centralblatt  fiir  Rechtswissenschaft,  until  it 
ceased  publication  in  1910,  printed  annual  reports  of  the 
new  Spanish  legal  publications.  Lists  of  new  Spanish  books 
may  also  be  found  in  Miihlbrecht's  Allgemeine  Bihliographie 
der  Stoats-  und  Rechtswissenschaften.  The  reports  on  Spanish 
bibliography  in  the  Annual  Bulletin  of  the  Comparative  Law 
Bureau  are  incomplete  and  unsatisfactory.  All  the  Spanish 
law  reviews  and  periodicals  as  for  instance  the  Revista  de 
derecho  privado,  the  Revista  de  legislacion  y  jurisprudencia, 
etc.,  contain  sections  devoted  to  bibliography. 

Among  the  various  catalogues  the  most  useful  is  the 
voluminous  catalogue,  published  in  1908,  of  the  Bar  Associa- 
tion of  Barcelona '  arranged  alphabetically  according  to 
subject    matter    with    author    index.     The    Bar    Association 


'  Borchard,    Edwin    M.     The    bibliography   of   international    law    and 
continental  law.     Washington,   Government  Printing  Office,   1913. 

93  P- 
^  Lincoln's  Inn,  Society  of.     Specimen  of  a  catalogue  of  the  books  on 

foreign  law  lately  presented  by  Charles  Purton  Cooper.     London, 

C.  Roworth  ;md  Sons,  1847.     80  p.     (Spain.) 
'■'  Barcelona.     Colegio    de  abogados.     Catdlogo  de    las  obras  existentes 

en  la  biblioteca.     Ano  1908.     Barcelona,  Hinrich.     486  p. 


LEGISLATION  9 

Library  of  Madrid'  is  at  present  (1914)  revising  and  enlarg- 
ing its  catalogue,  of  which  the  first  volume  appeared  in 
1889.  The  libraries  of  the  Consejo  de  Esiado  ^  and  of  the  De- 
partment of  Justice^  published  catalogues  some  years  ago 
which  still  retain  some  bibliographic  value.  A  recent  cata- 
logue of  bibliographic  interest  was  published  by  the  Royal 
Academy  of  Jurisprudence  and  Legislation;'  it  contains  all 
the  new  books,  both  Spanish  and  foreign,  received  by  its 
library  from  1902  to  191 4. 

Many  booksellers  and  publishers  issue  useful  catalogues  of 
legal  literature  at  frequent  intervals.  The  most  complete  is 
that  of  Victoriano  Suarez,^  a  well-bound  volume  covering 
every  branch  of  the  law  and  conveniently  indexed.  The 
principal  law  publishers  of  Spain  are  Hijos  de  Reus "  and 
Gongora'  in  Madrid.  Their  catalogues  also  constitute 
useful  bibliographies. 

LEGISLATION 

The  official  legislation  of  modern  Spain  may  be  said  to  com- 
mence with  the  convening  of  the  Cortes  in  18 10  at  Cadiz  during 
the  enforced  absence  of  Ferdinand  VII.  In  1812  the  first  con- 
stitution, which  marked  the  beginning  of  the  constitutional  as 
opposed  to  the  absolute  form  of  the  Spanish  monarchy,  was 
promulgated.  Before  that  time  the  legislation  consisted  of 
nothing  more  than  orders  or  edicts  from  the  kings  with  codes 
or  compilations  of  laws  issued  under  royal  authority.  Begin- 
ning in  1 8 10  and  continuing  until  1906,  the  laws  (leyes)  decrees 

'  CatAIogo  de  la  biblioteca  del  ilustre  colegio  de  abogados  de  Madrid  .  .  . 

Vol.  I.     Madrid,  Huerfanos,  1889.     481  p. 
^  Catalogo  de  la  biblioteca  del  Consejo  de  Estado.     Madrid,  Guilda,  1877. 

421  p. 
'Spain.     Ministerio  de  Gracia  y  Justicia.     Cat&Iogo  de  la  biblioteca  .  .  . 

Madrid,  Ministerio  de  Gracia  y  Justicia,  1885.     303  p. 
*  Catdlogo  de  las  obras  recibidas  por  la  Academia  Real  de  Jurisprudencia 

y  Legislacion  desde  1902  hasta  1914.     Madrid,  Hijos  de  Herndndez, 

1914.     128  p. 
'  Libreria  de  \'ictoriano  Suarez.     Catalogo  de  legislacion,  jurisprudencia, 

economia  y  ciencisis  sociales.     Madrid,  Suarez,  1913.     198  p. 
'  Hijos  de  Reus.     Catalogo  de  las  obras  y  publicaciones  de  la  casa  editorial 

de  Hijos  de  Reus.     Madrid,  1908.     112  p.     1913  suppl.     28  p. 
'  G6ngora.     Catalogo  del  Centro  Editorial  de  Gongora.     Madrid,   1913. 

88  p. 


lO  GUIDE  TO  The   law  of  SPAIN 

(decretos)  and  orders  (ordcrics)  enacted  by  the  Cortes  at  the 
regular  and  extraordinary  sessions  were  published  officially 
at  Madrid  by  the  ]\Iinister  of  Grace  and  Justice.  Some  of  the 
early  volumes  include  the  decrees  of  Ferdinand  VII  after  his 
return  to  power.  The  official  title  *  of  this  collection  of  legis- 
lation has  varied  from  time  to  time. 

An  index  ^  in  four  volumes  covers  the  laws  enacted  by  the 
Cortes  as  well  as  royal  decrees  from  1814  to  i860.  Alarcon^ 
published  in  1854  a  three  volume  rcpcrtorio  of  the  legislation 
in  force. 


'  Coleccion  de  los  decretos  y  ordenes  que  han  expedido  las  Cortes  generales 
y  extraordinarias  desde  su  instalacion  .  .  .     1810. 
vols.  1-2.     1810-1811. 
V.  3-4.     1812-1813. 
V.  5-6.     1813,  1820. 
V.  7-8.     1820-1821. 
V.  g-io.     1822-1S23. 

Madrid,  Impr.  Nacional  (also  Tomas  Alban  y  Cua).     1813-1823. 
Decretos  del  rey  Fernando  VII.     1814-1836. 
V.  1-6  with  appendix.     1814-1819. 
V.  7-1S.     1S23-1833. 
Madrid,  Impr.  Real.     1816-1834. 
Decretos  de  la  reina  Isabel  II. 
V.  ig-2i.     1834-1836. 

Madrid,  Impr.  Real,  1835-1837. 
Coleccion  de  las  leyes,  y  decretos  .  .  .  de  los  Cortes  y  de  los  reales 
decretos. 

V.  22-35.     1837-1845. 

Madrid,  Impr.  Nacional,  1837-1846. 
Coleccion  de  legislacion  de  Espana  .  .  . 
V.  36-59.     1846-1853. 

Madrid,  Impr.  Nacional,  1848-1854. 
Coleccion  legislativa  de  Espana. 
V.  60-148.     1853-1892. 

Madrid,  Impr.  Nacional,  1854-1897. 
Coleccion  legislativa  de  Espana. 
V.  1-23.     1898-1905. 

Madrid,  Rev.  de  legislacion,  1898-1906. 
^  Coleccion  de  leyes,  decretos,  etc..  Indices  generales,  cronol6gico  y  alfa- 
b^tico  .  .  .  Madrid,  Impr.  Nacional  (etc.). 

(1846-1860)  Impr.  Min.  de  Gracia  y  Justicia,  1862.     i  v. 
(1814-1845)  Impr.  Nacional,  1848.     2  v. 
(1837-1854)  Impr.  Nacional,  1854.     i  v. 
'  Alarcon,    P.    A.    de.     Rcpcrtorio   de   legislacion   vigente  .  .  .  Madrid, 
Tejado,  1854.     3  v. 


LEGISLATION  1 1 

The  Gacela  dc  Madrid,  published  daily  under  the  direction 
of  the  Minister  of  Hk-  Interior,  is  the  omcial  gazette  or  bul- 
letin of  the  government.  In  it  appear  the  laws,  decrees  and 
orders  of  the  government  as  enacted  and  issued,  as  well  as 
judicial  decisions  of  the  Supreme  Court  and  public  notices  of 
interest  to  judges,  courts  and  the  local  governing  bodies. 

The  collection  of  statutes  currently  used  by  practitioners 
is  published  privately  in  signatures  by  the  Revista  de  kgisla- 
ci6n  y  juris prudnwia.'  This  publication  contains,  in  addition 
to  the  texts  of  the  laws,  decrees,  etc.,  a  section  devoted  to 
brief  notes  or  discussions  of  legislative  problems  and  other 
items  of  interest  to  the  subscribers.  It  was  begun  in  1854 
and  ran  contemporaneously  with  the  official  reports.  A  gen- 
eral index  or  repertorio  to  this  series  was  published  by  Raraos== 
in  1882  covering  the  years  1854  to  1882.  Volumes  105-117 
(1898-1902)  have  also  been  indexed  under  the  direction  of 
the  editors  of  the  Revista.^ 

Another  private  collection  was  commenced  in  1897  by  the 
Remsta  de  los  irihunales  y  legislacion  universal,  edited  by  Fran- 
cisco Lastres,  under  the  title  Anuario  de  legislacion  y  juris- 
prudcncia  espanolas.  Sixteen  annual  volumes  were  published 
up  to  1913.  It  may  be  said  that  this  pubhcation  includes 
both  current  legislation  and  court  reports.  The  Revista  de 
los  tribunales  y  legislaeion  universal  {infra,  p.  17)  publishes  the 
texts  of  and  criticisms  upon  the  important  statutes.  Under 
the  direction  of  the  Revista  de  los  tribunales  ^  a  collection  of 
the  Spanish  legislation  has  been  compiled  covering  the  stat- 
utes from  1878  on.  It  is  pubUshed  currently.  The  title  of 
the  work  is  Repertorio  de  legislacion  espanola  but  it  is  in  fact 
a  collection  of  the  texts,  with  complete  indices  appended. 

1  Coleccion  completa  de  la  legislacion  espanola  .  .  .  desde  1853.     Boletin 

de  la  Revista  general  de  legislacion  y  jurisprudencia.     Madrid,  Rev. 
de  legislacion,  1854-1913-     152  v. 

2  Ramos  Rafael.     Repertorio  general  dc  la  legislacion  espanola.     Indice 

siste'm&ico  del  Boletin  de  .  .  .  desdc  1854  hasta  1882.     Madrid,  Rev. 

de  legislacion,  1882.     762  p. 
'  Repertorio  por  orden  cronologico  y   alfabetico  .  .  .  dc   1898  &   1902. 

Madrid,  Rev.  de  legislacion,  1904.     659  p. 
»  Repertorio  de  legislaci6n  espanola  publicado  por  la  Revista  de  los 

tribunales  y  de  legislacion  universal.     Madrid,  Gongora,  1881-1913. 

35  V. 


12  GUIDE  TO  THE   LAW  OF  SPAIN 

Attention  may  also  be  called  to  the  guide  or  index  (dicciona- 
rio-guia)  published  by  Gomez  Herrero  '  in  which,  under  an 
alphabetical  subject  arrangement,  the  statutes  are  listed. 
The  legislation  indexed  covers  the  period  1808  to  1900.  A 
useful  index  in  two  volumes  of  all  the  legislation  published 
officially  from  1810  to  1859  was  published  in  i860  by  Caso.^ 

Collections  of  legislation  on  special  branches  or  subjects  are 
mentioned  under  their  appropriate  headings  (infra).  The 
current  legislation  of  Spain  is  reviewed  in  a  fragmentary  way 
in  the  Annual  Bulletin  of  the  Comparative  Law  Bureau  of  the 
American  Bar  Association.  It  may  be  noted  also  that  the 
Revista  de  legislacion  universal  y  jurispriidcncia  espanola  con- 
tains a  monthly  summary  of  current  Spanish  legislation. 

COURT   REPORTS 

Judicial  decisions  (sentcncias)  in  Spain,  collectively  called 
jurispriidcncia,  are  not  binding  precedents,  although  they 
possess  great  persuasive  force.  They  were  formerly  a  direct 
source  of  law,  but  the  present  civil  code  (art.  6,  section  2) 
in  summing  up  the  recognized  sources  of  law  omits  judicial 
decisions.  In  default  of  express  legislation,  primarily  local 
customs,  and  secondarily  general  principles  of  law,  govern. 
But  the  change  from  a  direct  to  an  indirect  source  of  law  has 
had  little  practical  effect  on  the  influence  of  decisions  upon 
the  courts.  The  decisions  interpreting  the  codes  and  statutes 
are  said  to  be  strictly  adhered  to  and  contradictory  interpre- 
tations not  to  be  countenanced  by  the  Spanish  courts,  but  on 
examination  of  the  reports  of  many  years  such  conflicting 
decisions  are  found  not  infrequently.  Only  the  reports  of 
the  Supreme  Court  are  published  and  these  only  constitute 
juris  prudencia. 

The  Supreme  Court  {Tribunal  Supremo),  the  indirect  suc- 
cessor of  the  Consejo  real  de  Casiilla,  was  created  by  the 
Cortes  of  Cadiz  through  article  259  of  the  Constitution  of 
1812.     It  experienced  the  same  vicissitudes,  however,  through 

'  Gomez  Herrero,  Teodoro.  Diccionario-guia  legislativo  espanol.  Mad- 
rid, Ricardo  Fe,  1890-1903.     5  v.  and  2  suppl. 

'Case,  Jos6  Indaleco.  Guia  legislativa.  Indice  general  de  las  leyes, 
etc.,  en  la  coleccion  legislativa  oficial  de  Espana  desde  1810  hasta  el 
dia  .  .  .  Madrid,   Alejandro  Gomez   Fuentenebro,    1859-1860.     2  v. 


COURT  REPORTS  ^3 

which  the  Constitution  passed  and  it  was  not  until  1834  that 
it  was  finally  organized.  The  Supreme  Court '  published  in 
1909  a  brief  sketch  of  its  history  and  the  names  of  all  its 
judges  since  1812.  Official  reports  ^  were  published  from 
the  year  1846  to  1904.  Beginning  with  1874  the  civil  and 
criminal  reports  are  issued  separately.  The  reports  are 
to-day  pubUshed  officially  in  the  Gaceta  {supra,  p.  11),  which 
is  bound  and  kept  in  all  the  law  libraries.  Because  of  the 
unwieldiness  of  these  reports,  however,  the  privately  issued 
collections  are  preferred. 

The  Supreme  Court  from  its  estabUshnient  to  1875  had  a 
special  chamber,  sala,  for  appeals  against  the  administra- 
tion. In  1875  this  judicial  power  was  conferred  on  a  divi- 
sion or  committee  of  the  Council  of  State,  which  eventually 
(1888)  became  the  Tribunal  coniencioso-adminislrativo  del 
Consejo  de  Estado.  This  existed  until  1904  when  the  Tri- 
hunal  contencioso-administrativo  was  made  the  present  third 
sala  of  the  Supreme  Court,  with  the  same  jurisdiction.  The 
decisions  and  decrees  of  the  Council  of  State '  were  published 
officially  from  i860  to  1903  under  the  title  first  of  senle^tcias 
of  the  Council  of  State,  and  later  as  juris priulencia  adminis- 
Irativa.  These  volumes  are  individually  indexed  both  chron- 
ologically and  alphabetically. 

A  complete  and  important  collection  of  reports  is  edited 
privately  by  the  Revista  de  Icgislacion  y  juris prudeiicia  in 
loose  sheets  appearing  monthly.  These  reports  are  issued 
contemporaneously  with  the  official  reports  and  are  now  used 
by  the  profession  to  the  same  extent  as  the  official  reports. 

1  El   Uibimal   supremo.     Notas  relaUvas  d  su  origen  y   vicisitudes  y 

relacion  de  su  personal  desde  1812.     Madrid,  Fortanet,  1909.     97  p. 

2  Coleccion  Icgislativa  de  Espana.     Sentencias  del  Tribunal  Supremo 

de  Justicia.     Madrid,  Ministerio  de  Gracia  y  Justicia,    1846-1874. 

80  V. 
Same.     Materia  civil.     Madrid,  Ministerio  de  Gracia  y  Justicia  (etc.), 

1874-1904-     55  V.  ,      .  . 

Same.     Materia   criminal.     Madrid,  Ministerio  de  Gracia  y   JusUcia 

(etc.),  1874-1904.     56  V. 
(From  1895  to  1904  the  reports  were  published  by  the  government  m 
the  publishing  house  of  the  Revista  de  legislacion.) 
'  Coleccion  legislativa  de  Espana.     Sentencias  del  Consejo  de  Estado. 
(etc.).     Madrid,  Ministerio  de  Gracia  y  Justicia  (etc.).     1860-1903. 


14  GUIDE  TO  THE   LAW   OF   SPAIN 

The  civil  reports'  begin  in  1838,  the  criminal-  in  1870,  and 
the  administrative^  in  1850.  Reports  of  civil  and  adminis- 
trative law  are  likewise  issued  in  the  form  of  fortnightly 
advance  sheets  by  private  publishers  in  Madrid  {La  jurispru- 
dencia  del  dia).  This  constitutes  a  useful  addition  to  the 
practicing  attorney's  library  and  is  extensively  used. 

The  Revisia  de  los  tribunales  published  separately  up  to  1894 
lengthy  digests  of  the  civil  (1839-1904,  20  vols.),  criminal 
(1870-1894,  2  vols.  12  app.),  and  administrative  (1880-1894, 
12  vols.)  decisions  of  the  Supreme  Court,  and  also  those 
involving  mortgages  (1874-1894,  11  vols.).  From  1894  to 
1 91 4  all  branches  appear  together  in  twenty  volumes.  The 
doctrines  established  by  the  court  are  given  clearly  and  con- 
cisely. The  Revisia  publishes  the  digests  weekly  as  a  detach- 
able section  of  the  periodical. 

The  reports  have  been  indexed  or  digested  in  whole  or  in 
part  in  the  separate  divisions.  Pantoja*  published  a  reper- 
torio  of  the  civil  reports  in  two  volumes  with  four  appendices 
extending  over  the  years  1838  to  1887.  The  wOrk  has  ap- 
peared in  a  third  edition.  The  period  from  1883  to  1909  has 
been  covered  by  the  editorial  board  of  the  Revisfa  de  Icgisla- 
cion^  under  the  direction  of  Eduardo  Dato,  formerly  Minis- 
ter of  Grace  and  Justice  and  now  president  of  the  Consejo  de 
Ministros.  This  is  designed  more  especially  for  the  use  of  the 
subscribers  of  the  reports  published  by  the  Revisia  de  Icgisla- 
cidn.  The  criminal  law  reports  from  the  establishment  of  the 
special  criminal  chamber  of  the  Supreme  Court  in  1870  until 

'  Biblioteca  juridica  de  la  Revista  general  de  legislacion  y  jurispru- 
dencia.  Seccion  de  jurisprudencia  civil.  Madrid,  Rev.  de  legis- 
lacion, 1838-1913.-.     123  V. 

2  Biblioteca  juridica  de  la  Revista  general  de  legislacion  y  jnrispni- 
dencia.  Seccion  de  jurisprudencia  criminal.  Madrid,  Rev.  de 
legislacion,  1870-1913.-.     88.  v. 

'  Biblioteca  juridica  de  la  Revista  general  de  legislacion  y  jurispru- 
dencia. Seccion  de  jurisprudencia  administrativa.  Madrid,  Rev. 
de  legislacion,  1850-1913.-.  81  v.  [volumes  33-40  have  never  been 
published]. 

^Pantoja,  Jos6  Marfa.  Repertorio  de  la  jurisprudencia  civil  espafiola 
(anos  1838  4  1887).  3d  ed.  Madrid,  Hijos  de  Reus,  18S7.  2  v. 
4  app. 

^  Repertorio  doctrinal  y  legal  de  la  jurisprucencia  civil  (afios  1883  4  1909) 
por  la  Redaccion  de  la  Revista  general  de  legislacion  y  jurispru- 
dencia.    2d  ed.     Madrid,  Hijos  de  Reus,  1912.     6  v. 


GENERAI^  WORKS  1 5 

1882  were  digested  in  live  volumes  by  Pantoja.*  The  ad- 
ministrative law  reports  from  1S46  until  the  abolition  of  the 
contentious  administrative  jurisdiction  in  1868  were  digested 
by  Pantoja,"  and  from  the  establishment  of  the  Contentious 
Administrative  Tribunal  in  1888  until  1904  by  the  board  of 
the  Revisla  de  legislacidn '  under  the  direction  of  Eduardo 
Date.  This  likewise  is  designed  as  an  aid  in  using  the  reports 
of  the  Revista  de  ktjislacidn.  The  reports  of  the  special  ad- 
ministrative court  from  the  date  of  its  organization  to  1896 
were  officially  digested.'' 

There  are  several  collections  and  digests  of  decisions  on 
special  branches  of  the  law  or  interpretations  of  codes,  e.  g., 
conmiercial  law,  the  civil  code,  etc.  These  publications  are 
cited  under  their  appropriate  headings. 

An  extensive  digest  of  reports  from  1838  to  1887  in  the 
form  of  an  encyclopedia  of  the  points  of  law  raised  and 
decided  in  the  Supreme  Court  was  compiled  by  Saenz- 
Hermua.*  The  work  is  especially  arranged  with  reference  to 
the  civil  code,  although  supplements  cover  criminal  and 
administrative  law. 

GENERAL  WORKS 

There  are  several  extensive  general  encyclopedias  and  dic- 
tionaries of  Spanish  law.  An  encyclopedia  published  in  1864 
by  a  society  of  lawyers  and  writers,  imder  the  direction  of 
Sanguineti,"  purports  to  be  a  general  compilation  of  all  the 

'  Pantoja,  Jose  Maria.  Repertorio  dc  la  jurisprudencia  criminal. 
Madrid,  Hijos  de  Reus,  1875-1885.     5  v. 

^  Pantoja,  Jos6  Maria.  Repertorio  de  la  jurisprudencia  administrativa 
(anos  1846  a  1868).     Madrid,  Hijos  de  Reus,  i86g.     1600  p. 

^  Repertorio  doctrinal  por  orden  alfabetico  de  la  jurisprudencia  adminis- 
trativa espanola  por  la  Redaccion  de  la  Revista  de  legislacion 
bajo  la  direccion  del  Eduardo  Dato.  Madrid,  Hijos  de  Reus,  1888- 
1904.     2  V. 

*  Repertorio  alfab6tico  por  materias  de  todas  las  sentencias  y  autos  dicta- 

dos  por  el  Tribunal  de  lo  contencioso-adrainistrativo  desde  su  crea- 
cion  hasta  el   dia   15  de   1896.     Madrid,  Rev.  de   legislacion,  1896. 

659  P- 

*  Saenz-Hermua  y  Espinosa,  P.  Diccionario  recopilador  de  los  puntos  de 

derecho  rcsueltos  en  sentencias  del  Tribunal  Sujiremo  de  Justicia 
desde  1838  hasta  1887.  .  .  Madrid,  V.  Suarez,  1884-90.     4  v.  and 
3  suppl. 
oSanguineti,   Carlos    Massa.      Diccionario     juridico-aduiiuistrativo  .  .  . 
Madrid,  Rev.  de  legislacion  (etc.),  1858-1864.     5  v. 


l6  GUIDE  TO  THE   LAW   OF   SPAIN 

laws.  Escriche  ^  in  1831  published  a  general  encyclopedia 
of  the  legislation  and  court  reports,  which,  in  its  later  edi- 
tions, is  still  cited  as  authority  in  Spanish-American  courts. 
In  this  work  he  was  assisted  by  some  of  the  leading  jurists  of 
Spain.  A  lengthy  and  ambitious  legal  encyclopedia  was  be- 
gun in  1848  by  Arrazola,-  a  Justice  of  the  Supreme  Court,  in 
collaboration  with  many  others.  By  1870  twelve  volumes  had 
appeared,  but  only  the  first  three  letters  of  the  alphabet  had 
been  covered.  The  work  has  never  been  completed.  The 
latest  legal  encyclopedia  is  now  in  course  of  publication  under 
the  direction  of  Pedret,  Oliver  Rodriguez,  and  Torres  Ballaste.' 
Eight  volumes  and  two  appendices  have  appeared,  but  they 
cover  only  a  few  letters  of  the  alphabet.  This  work  when 
completed  will  be  an  exhaustive  repository  of  the  law,  on  the 
order  of  Fuzier-Herman's  Repertoire  for  France.  It  gives 
definitions,  expositions,  and  even  the  full  texts  of  the  impor- 
tant statutes.  In  the  useful  three-volume  work  of  Martinez 
Moreda,*'  published  in  1905,  the  legal  terms  and  words  ordi- 
narily used  are  defined,  especially  those  dealing  with  civil 
and  commercial  law.     As  it  is  inexpensive,  it  is  widely  used. 

Martinez  Alcubilla^  has  furnished  what  is  probably  the  most 
extensive  and  what  has  become  the  standard  encyclopedia  of 
Spanish  law.  The  work  originally  comprehended  nine  vol- 
umes, but  new  appendices  are  constantly  published.  The  pub- 
lishers announce  that  a  new  edition  condensing  the  appendices 
is  now  (1914)  in  course  of  preparation.     Aleu's'  dictionary  of 

'  Escriche,  Joaquin.  Diccionario  razonado  de  legislacion  y  jurisprudeii- 
cia.  Nueva  ed.  Madrid,  Eduardo  Ciiesta,  1874-1876.  4  v.  ist  ed. 
Paris,  1831;  2d  ed.  Madrid,  1839-1840;  3d  ed.  (with  suppl.)  Madrid, 
1847-1851. 

^Arrazola,  Lorenzo  (and  others).  Enc'iclopedia  espafiola  de  derecho  y 
administracion  6  nuevo  teatro  universal  de  la  legislacion  de  Espafia 
k  Indias.     Madrid,  Rev.  de  legislacion,  (etc.)     1848-1870.     12  v. 

^Pedret  y  Torres,  Victor;  Oliver  Rodriguez,  Enrique;  and  Torres 
Ballaste,  Juan.  Enciclopcdia  juridica  espafiola.  Barcelona,  Fran- 
cisco Seix,  1910-1911.     8  V.  and  2  app.  through  1912. 

*  Martinez  Moreda,  Mateo.  Diccionario  de  legislacion  vigente.  Madrid, 
Felipe  Gonzalez  Rojas,  1905.     3  v. 

^Martinez  Alcubilla,  Marcelo.  Diccionario  de  la  administracion  es- 
pafiola. 5th  ed.  Madrid,  Administracion,  1892-94.  9  v.  and  21 
pendices  through  1912. 

"Aleu  y  Carrera,  Manuel.  Diccionario  de  la  administraci6n  municipal 
de  Espafia.     2d  ed.     Madrid,  A.  Per^z  yC",  igo8-ii.     8  v. 


GENERAL  WORKS  I 7 

municipal  administration  occupies  a  broader  field  than  the 
title  indicates  and  is  a  work  of  much  practical  use.  The 
editors'  of  the  Gaceia  have  published  an  encyclopedia  of  law, 
with  commentaries  on  all  legislation  to  1907.  Three  supple- 
ments extend  the  work  through  1910.  There  may  also  be 
mentioned  Hermur  Espinosa's  diccionario  ^  of  the  law  as 
created  by  judicial  decisions  extending  over  the  years  1838 
to  1890. 

The  leading  general  periodicals  of  Spanish  law  are  the 
Revisla  de  legislacion  y  juris prudcncia  and  the  Revista  de  los 
iribunales,  both  pubHshed  in  Madrid.  The  former  was  estab- 
lished in  1852  by  Reus,  and  is  now  directed  by  the  well  known 
jurist  and  pubHcist,  Eduardo  Dato.  Both  journals  have  as 
contributors  the  leading  jurists  of  the  country.  Articles  on 
subjects  of  legal  interest  and  discussions  of  points  of  law  are 
included  as  well  as  accounts  of  new  legislation  and  recent 
important  decisions.  Prof.  Clemente  de  Diego  of  the  Univer- 
sity of  Madrid  with  the  collaboration  of  Jose  MaNavarro  de 
Palencia  estabUshed  in  1913  a  new  legal  periodical  {Revista  de 
derecho  privado)  devoted  exclusively  to  the  study  of  practical 
questions  in  Spanish  civil,  mercantile  and  administrative  law. 
It  has  enjoyed  a  remarkable  success  in  its  first  year  of  exist- 
ence. Another  new  general  law  magazine  (Juris)  appeared 
in  January,  191 4,  edited  by  Eduardo  Barriobero  of  Madrid,  a 
lawyer  of  reputation  and  a  member  of  the  Corles.  Its  pub- 
lished numbers  have  received  some  adverse  criticism. 

A  pretentious  enterprise  was  begun  in  1885  by  Romero 
and  Garcia  Moreno,^  assisted  by  many  lawyers  and  publicists, 
with  the  purpose  of  collecting  and  compiling  the  texts  of  the 
laws  and  codes  of  the  nations  of  modern  times.     Appendices 

'  Nuevo  y  complcto  diccionario  administrativo  .  .  .  per  la  Redaccion  de 
"Gaceta  Administrativa."  Madrid,  Gaceta  Adm.,  1910.  3  v.  with 
3  suppl. 

'Hermur  Espiiiosa,  Pedro  Saenz.  Diccionario  recopilador  de  los  pimtos 
de  derecho  resueltos  en  sentencias  del  tribunal  supremo  de  justicia 
desde  1838  hasta  fin  de  Diciembre  de  1885.  Madrid,  Hu^rfanos, 
1886-1890.     4  V.  and  3  app.  carrying  the  work  to  i8go. 

'  Romero  y  Giron,  Vicente  and  Garcia  Moreno,  Alejo.  Colcccion  de  las 
institucioncs  politicas  y  juridicas  dc  los  pueblos  raodcmos.  Madrid, 
de  Gongora,  18S5-1910.  ist  series,  1885-1889.  13  v.;  2d  series,  2  v. 
and  ig  app. 

77231°— 15 2 


1 8  GUIDE   TO   THE    IvAW    OF    SPAIN 

have  extended  the  work  to  1910.  It  may  be  noted  that  two 
entire  volumes  are  given  over  to  a  commentary  on  the  Spanish 
civil  code.  An  extremely  useful  and  interesting  book  en- 
titled "Every  day  law"  (Dencho  usual)  was  published  in 
1913-14  by  Posada  '  with  the  object  of  presenting  in  language 
intelligible  to  the  layman  a  brief  exposition  of  all  branches  of 
the  law.  Posada  contributed  sections  on  "general  ideas  of 
law,"  political  and  administrative  law,  social  and  labor  laws; 
Clemente  de  Diego,  Sela,  Bernaldo  de  Ouiros  and  Sangro  pre- 
pared the  sections  on  civil,  mercantile,  international,  criminal 
and  procedural  law  respectively. 

A  treatise  for  the  practical  use  of  members  of  the  clergy 
covering  civil,  procedural,  criminal  and  administrative  law 
was  prepared  by  Pellicer.^  A  second  edition  was  published 
in  1910. 

There  are  several  publishing  houses  in  Spain  which  regu- 
larly issue  manuals  and  annotated  editions  of  all  the  codes 
and  important  statutes,  revising  them  as  changes  in  the  law 
may  require.  Hijos  de  Reus  and  the  Centro  Editorial  de 
Gongora  of  Madrid  are  the  chief  and  most  reliable  of  such 
establishments.  M.  Soler  of  Barcelona  edits  convenient 
pocket  manuals  on  every  branch  of  the  law.  Abella,  the 
director  of  El  consultor  dc  los  ayuntamientos  y  de  los  juzgados 
municipalcs  of  ^Madrid,  who  publishes  the  most  complete  col- 
lection of  manuals  and  annotated  texts  in  the  field  of  adminis- 
trative law,  edits  most  of  the  codes  and  other  laws  as  well. 
Two  lawyers  of  Madrid,  Leon  Medina  and  IManuel  Maraiion 
have  compiled  annotated  collections  of  legislation  including 
civil,  criminal,  administrative  and  special  laws.  These  collec- 
tions are  the  ones  currently  employed  by  the  profession.  It 
may  also  be  mentioned  that  J.  Vila  Serra  of  Valencia  pub- 
lishes small  editions  of  the  codes,  various  manuals  and  collec- 
tions of  special  statutes  and  laws. 

'  Posada,  Adolfo;  Clemente  de  Diego  F.;  Sela  y  Sarnpil,  A.;  Bernaldo 
de  Quiros  C;  Sangro,  P.     Derecho  usual.     Madrid,  La  lectura,  1914. 

567  P- 
^  Pellicer  y  Guiu,  Josfe.     Tratado  tcorico-prdctico  de  derecho  civil,  pro- 
cesal,  penal  y  administrativo  para  uso  del  clero.     2d  ed.     Zaragoza, 
Cecileo  Gasca,  igio.     2  v. 


JURISPRUDENCE    AND   PHILOSOPHY   OF   I,A\V  1 9 

LKOAL  EDUCATION 

The  subject  of  legal  education  in  Spain  has  never  attracted 
much  attention.  While  the  overcrowded  law  schools  com- 
prise the  largest  departments  of  the  universities,  little  or 
no  modern  literature  has  appeared  in  regard  to  the  preUm- 
inary  training  of  lawyers  and  the  general  advancement  of  the 
bar.  The  jurist  Posada  '  in  1889  published  a  discussion  of  the 
teaching  of  law  in  the  Spanish  universities  and  advanced  some 
ideas  for  its  reformation.  The  education  of  applicants  for  the 
bar  and  the  social  standing  of  the  Spanish  lawyer  of  the  first 
half  of  the  nineteenth  century  are  described  briefly  in  an  early 
number  of  the  Law  Magazine,  volume  13  (1835)  pages  306-309. 
For  purposes  of  comparison  there  may  be  noted  an  article  in 
the  July  (19 1 4)  issue  of  Case  and  Comment,  volume  21,  pages 
142-143,  on  legal  education  in  Spain  at  the  present  time.  A 
brief  account  of  the  existing  state  of  legal  education  and  the 
requirements  for  admission  to  the  bar  in  Spain  and  in  Porto 
Rico  was  presented  by  a  Porto  Rican  attorney,  Rodn'guez- 
Serra  in  an  address  before  the  American  Bar  Association  in 
1 910,  and  reprinted  in  the  Report  for  that  year,  volume 
XXXV,  pages  840-845. 

Altamira  has  discussed  the  state  of  the  teaching  of  the 
history  of  Spanish  law  in  the  1909  Bullcim  hispaniquc,  volume 
1 1, pages  172-199.  Numerous  articles  of  more  or  less  interest 
by  various  authors  may  be  found  in  the  Revisia  de  Icgislacion 
and  the  Revista  de  los  tribiinalcs  in  regard  to  legal  education 
in  general  and  to  the  teaching  of  special  branches  of  law. 

JURISPRUDENCE   AND   PHILOSOPHY  OF  LAW 

The  Spanish  word  juris prudcncia,  as  defined  by  a  leading 
Spanish  dictionary  (Aleu),  is  the  practice  or  custom  (hdbito) 
of  interpreting  rightly  the  laws  and  of  applying  them  oppor- 
tunely to  the  cases  that  arise.  It  is  used  also  to  denominate 
as  a  whole  the  decisions  (seniencias)  of  the  Supreme  Court. 
But  a  broader  meaning  is  often  applied — the  science  of  law  or 
general  jurisprudence,  a  conception  better  known  to  the  Anglo- 
American  lawyer. 

'  Posada,  Adolfo.     La   ensenanza  del    derecho   en    las    uiiivcrsidades. 
Madrid,  Fe,  1889.     130  p. 


20  GUIDE   TO   THE   LAW   OF   SPAIN 

Four  great  epochs  may  be  said  to  mark  the  growth  and 
progress  of  the  study  of  the  science  of  law  and  its  closely 
related  subject,  the  philosophy  of  law  in  Spain — the  early  or 
primitive  period,  the  Renaissance,  the  period  of  the  influx 
of  the  French  encyclopedists,  and  finally  the  Constitutional 
period  of  the  19th  century  extending  to  and  including  the 
present  day. 

Little  is  known  of  the  early  or  first  epoch.  The  volumes  of 
San  Isidore^  (570-630),  "Libri  scntcniiarum"  and  " Eiymolo- 
giariim  libri",  of  the  collection  of  his  works  edited  by  F. 
Arevalo,  have  given  him  prominence  in  the  field  of  juris- 
prudence. The  Catalan  jurist,  Raimundo  Lulio,  mav  also  be 
mentioned  as  of  importance  during  the  primitive  period, 
although  he  lived  several  centuries  later  than  Isidore. 

During  the  period  of  the  Renaissance  numerous  legal 
theorists  and  philosophers  appeared.  One  of  importance  was 
Francisco  de  Vitoria^  (1480-1546),  whose  influence  was  felt  in 
the  field  of  international  law  as  well.  The  sections  "De  civile 
potestate" ,  " De  pokstatc  pontificis" ,  and  " De  Indis  et  jure  belli" 
in  the  work  "  Relectiones  theologicae  XIII"  are  of  especial 
worth.  Vives '  (i 492-1 540)  made  several  contributions  to 
the  literature  of  the  period,  among  which  may  be  enumer- 
ated "De  causis  corruptarum  artium",  "De  coniunione  rerum, 
principes  Germanice  inferioris",  " Praelectio  in  leges  Cicer- 
onw  ",  and  "  Z)t' (/wci/>/t«w  ",  collected  with  other  monographs  in 
eight  volumes.  Mariana's^  work  concerning  the  king  and  the 
institution  of  kingship  has  appeared  in  three  Spanish  editions. 
Suarez,'^  a  Jesuit,  sums  up  with  the  greatest  completeness  and 
elaboration  the  scholastic  doctrines  of  the  law  in  a  work  pub- 
lished in  1 61 3.  It  has  undergone  many  editions  of  various 
worth.  An  "  idea  of  a  politic-Christian  prince  represented  in 
a  hundred  undertakings",  including  introductions  to  the  policy 
and  principle  of  the  state,  is  an  interesting  subject  treated  by 

'  Isidoro,    San.     Opera   omnia,  .  .  .  de    Faustino    Ar6valo  .  .  .  propi- 

tiones,  notas,  collationes.     Rome,  Aut-Fulgoni,  1797-1803.     10  v. 
-  Vitoria,  Francisco  de.     Relectiones  theologicae  XIII  partibus  per  varias 

sectiones  in  duos  libros  divisac.     Salamanca,  1565  by  P.  Af.  Miinoz, 

his  disciple.     Madrid,  M.  Martin,  1765.     607  p. 
'  V'ives,  Luis.     Opera  omnia.     Valencia,  Bened.  Monfort,  1782-9.     8  v. 
*  Mariana,  J.     De  rcge  et  regis  institutione.     Toledo,  Pedro  Roderico, 

1599.     446  P- 
'  Sudrez,   F.     De  legibus  ac   Deo    legislatore.     Salamanca,  Gomez  de 

Lonreyro,  1612.     1266  p. 


JURISPRUDENCE   AND   PHILOSOPHY   OI'   LAW 


21 


vSaavedraFajardo,'  a  writer  of  some  reputation.  Gracian's  = 
works,  "The  discreet",  "The  hero",  "The  poUtical  Fer- 
nando", and  the  "Mainial  oracle  and  art  of  prudence",  are 
worthy  of  reference.  A  Ust  of  the  writers  of  this  epoch  would 
be  incomplete  which  docs  not  mention  the  names  of  Gines 
de  Sepiilveda,  Vazquez  Manchaca  and  Baltasar  de  Ayala. 

Toward  the  second  half  of  the  eighteenth  century  the 
influence  of  the  French  encyclopedists  dominated  legal  science 
in  Spain.  A  few  representatives  of  the  old  traditions  re- 
mained, among  others  Father  Ceballos  and  Father  Alva- 
rado.  The  change  of  the  attitude  of  the  Church  from  the 
liberalism  of  the  middle  ages  to  the  eighteenth  century  abso- 
lutism seems  to  have  had  the  reverse  effect  upon  the  jurists, 
who  turned  from  absolutism  to  liberalism. 

There  are  a  few  valuable  contributions  to  legal  Hterature 
during  this  period.  The  Count  of  Campomanes  ^  published 
in  1788  a  discussion  of  the  "impartial  suit  over  the  ecclesi- 
astical monition  of  Parma"  and  an  earlier  treatise  on  the  royal 
rights  of  mortmain  in  1765.  Jovellanos '  in  1787  prepared  a 
di'scussion  of  the  agrarian  law  (published  1795)  which,  as  well 
as  his  article  in  defense  of  the  Central  Council,  is  of  some  merit. 
Of  especial  interest  are  his  political  ideas  expressed  in  the 
second  part  of  the  last-named  article.     Martinez  Marina  =  has 

'  Saavedra  Fajardo,  D.  de.     Idea  de  uti  principe  politico  cristiano  repre- 
sentada  en  cien  empresas.     Last  ed.  Valencia,  Salvador  Jauli,  1800- 
1801.     2  V.     [ist  ed.  Monaco,  Nicolas  Eurico,  1640.     753  p.] 
'  Gracian,  Baltasar.     El  discrete.     Barcelona,  Juan  Deden,  1647.     388  p. 
Same.     El  heroe.     Amsterdam,  Diego  Diaz,  1639.     747  P- 
Same.     El  politico  Don  Fernando.     Huesca,  Juan  Nogues,  1644.     222  p. 
Same.     El  oraculo  manual  y  arte  de  la  prudeacia.     Lisboa,  Henrique 
Valente  de  Oliveiva,  1657.     272  p. 
3  Campomanes,  Conde  de.     Juicio  imparcial  sobre  el  monitorio  de  Parma. 

Madrid,  1788. 
Same.     Tratado  de  la  regalia  dc  amortizacion.     Madrid,  1765. 
■•  Jovellanos,  Caspar  Melchor  de.     Informe  ...  en  el  expcdiente  de  la 

leyagraria  .  .  .  Madrid,  vSancha,  1795.     149  P- 
Same.     Memoria  en  defensa  de  la  Jiuita  Central.     Madrid,  1810. 
s  Martinez  Marina,   Francisco.     Tcoria  de  Uis  Cortes  o  grandes  juntas 

nacionales  de  los  reinos  de  Leon  y  Castilla  .  .  .  Madrid,  Fermin 

Villalnando,  1813.     2  v. 
Same.     Ensayo  historico-critico  sobre  la  antigua  Icgislacion  y  princi- 

pales  cuerpos  legales  dc  los  reinos  de  Leon  y  Castilla  .  .  .  Madrid, 

Hija  de  Joaquin  O.  Carra,  1808.     45°  P- 


22  GUIDE   TO   THE    LAW    OF   SPAIN 

produced  two  leading  works — the  theory  of  the  Cortes  or  the 
great  national  congresses  of  the  kingdoms  of  Leon  and  Castile 
and  the  historico-critical  essay  on  ancient  Spanish  legislation. 
Florez  Estrada,'  whose  treatise  on  political  economy  expe- 
rienced four  editions  to  1835,  discussed  in  the  course  of  a  later 
work  (1839)  the  social  question,  origin,  latitude,  and  effects 
of  the  law  or  rights  of  property.  There  must  be  enumerated 
also  the  names  of  Benito  Jeronimo  Feijo,  and  the  Counts  of 
Floridablanca  and  Cabarrus  who  were  among  the  great  jurists 
of  this  period. 

The  constitutional  movement  in  Spain  begins  with  the 
convening  of  the  Cortes  of  Cadiz  in  181 2  and  this  may  be  said 
to  constitute  the  fourth  epoch  in  the  history  of  the  philosophy 
of  law.  It  extends  to  the  present  day.  Among  those  who 
represent  the  first  half  of  the  nineteenth  century  Donoso 
Cortes,  Balmes  and,  in  the  second  half,  Sanz  del  Rio  have 
exerted  a  lasting  influence.  Donoso  Cortes  -  represents  a  very 
conservative  theological  school.  He  brought  himself  into 
prominence  at  the  age  of  27  by  a  series  of  lectures  on  political 
law  delivered  in  the  Ateneo  of  Madrid.  A  complete  edition 
of  his  works  was  published  in  1854.  His  essay  on  Catholi- 
cism, liberalism  and  socialism  exercised  particular  influence. 
Balmes  ^  was  of  the  theological  school,  but  in  truth  he  was 
a  philosopher.  His  works  include  many  dealing  with  general 
philosophy.  His  politico-legal  theories  are  comparable  to 
those  of  Donoso  Cortes,  except  that  Balmes  defends  the  old 
form  of  monarchy   as   distinguished    from    a   constitutional 

'  Florez  Estrada,  Alvaro.     Cursodc  economia  politica.     4th  cd.     Madrid, 

Miguel  de  Burgos,  1835.     2  v. 
Same .     La  cuestion  sociaL  origen ,  latitud ,  ef ectos  del  dcrecho  de  proprie- 

dad.     Madrid,  1839. 
'^  Donoso  Cortes,  Juan.     Obras  de  .  .  .  ["  Lecciones  de  dereclio  politico 

pronunciadas en  el  Ateneo  de  Madrid,"  vol.  i,pp.  115-272;  Principios 

constitucionales  aplicados  al  proyecto  de  ley  fundamental,  etc.  vol. 

I,  pp.  309-347.     Ensayo  sobre  el   catolicismo,  el   liberalismo  y   el 

socialismo.  vol.  4.  pp.  1-406].     Madrid,  Fejado,  1854.     4  v. 
=  Balmes,  Jaime.     Escritos  politicos  de  .  .  .  Madrid,   Operarios,    1847. 

808  p.. 
Same.     La  Sociedad,  revista  religiosa,  filosofica,  politica  y  literaria. 

5th  ed.     Barcelona,  Barccloncsa,  iSSg.     4.  v.  in  2. 
Same.     El  criterio.     Barcelona,  Antonio  Brusi,  1846.     384  p. 
Same.     Misceldnea  religiosa,  politica  y  literaria.     Barcelona,  Barcelo- 

nesa,  1909.     317  p. 


JURISPRUDENCE   AND   PHILOSOPHY   OI*   LAW  23 

monarchy.  Among  the  writings  of  merit  touching  upon  the 
philosophy  of  law  and  jurisprudence  are  a  one  volume  collec- 
tion of  "political  writings,"  of  which  the  essay,  the  "thought 
of  a  nation,"  is  of  especial  value,  a  two  volume  review  of 
society  from  a  religious,  philosophical,  political  and  literary 
viewpoint,  and  the  work  " El  critcrio."  A  volume  of  selected 
miscellaneous  political  and  religious  articles  was  published 
recently  (1909).  Sanz  del  Rio,'  a  follower  of  Krause,  has 
enjoyed  perhaps  the  greatest  influence  among  the  liberals. 
Such  modern  leaders  as  Giner  de  los  Rios,  Salmeron  and 
Azcarate  are  his  deciples.  Besides  his  purely  philosophical 
works,  he  has  published  the  "Ideal  of  humanity  for  life,"  an 
adaptation  of  the  book  of  Krause  on  ethics,  politics  and 
sciology. 

The  most  important  and  best  representative  of  the  Catholic 
school  is  Prof.  Juan  M.  Orti  y  Lara,  still  active  at  the  age 
of  eighty-nine.-  His  "  Introduction  to  the  study  of  law  and 
principles  of  natural  law"  is  one  of  the  leading  works  of 
Spanish  law.  He  has  written  several  essays  and  interesting 
introductions  to  translations  of  foreign  works.  His  address 
on  "Opposed  theories  of  the  purpose  and  end  of  the  state  from 
the  conception  of  its  evolution  or  creation"  before  the  Acad- 
emy of  Moral  and  Political  vSciences  attracted  mucli  attention. 

Prof.  Giner  de  los  Rios,^  professor  of  philosophy  of  law  in 
the  University  of  Madrid  and  the  leading  Spanish  contempo- 
rary authority  on  the  subject,  is  a  disciple  of  Krause  and  Sanz 
del  Rio.  He  has  published  a  collection  of  essays  or  studies  on 
legal  and  political  questions  in  1879,  several  notes  to  Ahrens' 
juristic  encyclopedia  and  the  work  "The  social  person"  (1899). 
Two  of  his  important  contributions  to  the  philosophy  of  law 

'  Sanz  del  Rio,  Julian.     Ideal  de  la  humanidad  para  la  vida.     2d  ed. 

Madrid,  187 1.     2  v. 
'  Orti  y  Lara,  Juan  Manuel.     Introduccion  al  estudio  del  derecho  y  prin- 
cipes  de  drercho  naturaL     Madrid,  1878. 
Same.     Teorias  opucstas  entre  si  accrca  del  cstado  y  su  iin,  scgiin  que 
proceden  del  concepto  de  la  evohiciou  6  del  concepto  de  la  creacion. 
Madrid,  Jaime  Rates,  1908.     (VoL  VII,  pp.  i<)9-288  of  Discursos  de 
recepcion  de  la  academia  de  ciencias  morales  y  politicos.) 
^  Giner  de  los  Rios,  Francisco.     Rstudios  jiiridicos  y  politicos.     Madrid, 
V.     Suarez,  1875.     344  p. 
Same.     La  persona  social.     Estudios  y   fragnientos  .   .   .  Madrid,    V. 
Suarez  1899.     433  p. 


24  GXnDE  TO  THE   LAW   OK   SPAIN 

have  been  published  with  the  collaboration  of  the  late  Cal- 
deron.  These  are  a  " Resum^n"  of  philosophy  of  law  '  (1898) 
and  "principles  of  natural  law."  -  The  former  work,  of  which 
only  one  of  two  projected  volumes  has  appeared,  contains  a 
summary  of  the  principal  problems  of  the  philosophy  of  law, 
a  preliminary  article  relating  to  the  ordinary  understanding  of 
law,  and  an  introduction  dealing  with  the  conception,  encyclo- 
pedia, sources  and  method  of  philosophy  of  law  with  general, 
special  and  organic  parts  of  this  science.  Calderon  ^  himself 
has  produced  many  leading  essays  and  monographs  gathered 
in  the  volume  "Trifles"  and  others. 

The  works  of  the  late  Costa,  who  died  in  191 1 ,  make  him  one 
of  the  foremost  Spanish  jurists.  He,  too,  is  a  disciple  of 
Krause,  although  his  theories,  etc.,  indicate  the  great  influence 
of  the  historical  school  of  .Savigny  and  Puchta,  especially  of 
the  former.  Costa  ^  has  dealt  with  such  interesting  topics  as 
"The  life  of  law"  (an  essay  concerning  customary  law), 
"Theory  of  the  juridic  fact,  individual  and  social,"  and  "The 
problem  of  ignorance  of  law."  In  addition,  he  has  published 
a  collection  of  legal  and  political  essays.  He  has  influenced 
more  than  anyone  else  the  development  of  the  study  of  the 
customary  law  of  Spain.  Another  collection  of  political  and 
philosophical  studies  of  importance  came  from  the  pen  of 
Prof.  Azcarate,^  the  president  of  the  noted  Institute  of  Social 

'  Giner  de  los  Rios,  Francisco  and  Calder6n,  Alfredo.  Resumen  de  filo- 
sofia  del  derecho.     Madrid,  V.     Siiarez,  1S9S.     399  p. 

^  Giner  de  los  Rios,  Francisco  and  Calder6n,  Alfredo.  Proleg6inenos  del 
derecho.  Principios  de  dcrccho  natural  sumariamentc  expuestos 
.  .   .  Madrid,  Bibliotcca  dc  Instruccion  y  Rccreo  (no  date).     290  p. 

^  Calderon,  Alfredo.  Nonadas.  Bilboa,  Impr.  Artistica  de  Miiller  y  Zava- 
leta,  1896.     322  p. 

■•Costa,  Joaquin.     La  vida  del  derecho.     2d  ed.     Madrid,   "Biblioteca 
Costa,"  1914.     272  p. 
Same.     Teoria  del  hecho  jtiridico  individual  y  social.     Madrid,  Rev. 

de  legislacion,  1880.     377  p. 
Same.     El  problema  de  la  ignorancia  del  derecho  y  sus  relaciones  con 
el  stattis  individual,  el  referendtim  y  la  costtimbre.     Madrid,  San 
Francisco  de  Sales,  igoi.     105  p. 
Same.     Estudios  juridicos  y  politicos.     Madrid,  Rev.  de  legislacion, 
1884.     439  p. 

'  Azcdrate,  Gumersindo  de.     Estudios  filosoficos  y  politicos.     Madrid, 
1S78. 
Same.     Ensayo  de  una  introducci6:i  al  estudio  de  la  legislacion  com- 
parada  y  progrania  de  esta  asignatura  .  .  .  Madrid,  Rev.  de  legis- 
lacion, 1874.     1S8  p. 


JURISPRUDENCE   AND   PHILOSOPHY   OF   LAW  25 

Reforms.  Azcdrate  is  of  the  Krausian  school  and  also  a  fol- 
lower of  Sanz  del  Rio.  He  prepared,  in  1874,  an  interesting 
introduction  to  the  study  of  comparative  legislation,  followed 
by  an  outline  of  his  course  on  this  subject  in  the  University 
of  Madrid  law  school.  Most  of  his  works  deal  with  political 
economy,  comparative  law  and  social  science,  and  have  caused 
him  to  be  regarded  as  a  leader  in  these  fields. 

An  important  contribution  by  the  late  Prof.  Gil  y  Roblcs' 
appeared  in  1895  as  a  prologue  to  the  Spanish  translation  of 
Stahl's  "History  of  the  philosophy  of  the  law."  The  author, 
who  is  of  the  CathoUc  school,  is  one  of  the  most  important  of 
modern  conscr\'ativc  theorists.  His  treatise  on  pohtical  law 
according  to  the  Christian  principles  of  philosophy  and  law  also 
warrants  mention.  His  monographs  on  "absolutism  and  de- 
mocracy" and  the  "legal  methodology  "  show  evidences  of  the 
inlluence  of  Krause. 

Prof.  Dorado  Montero  ^  is  the  most  important  Spanish 
author  of  a  philosophy  of  law  from  a  positivist  point  of  view. 
However,  in  his  penal  studies,  for  which  he  is  best  known, 
he  shows  the  influence  of  Krause.  His  leading  contributions 
to  the  literature  of  jurisprudence  and  philosophy  of  law  are 
the  "Bases  for  a  new  penal  law,"  the  "Social  value  of  laws 
and  authorities"  and  the  "Law  and  its  priests,"  a  substantial 
book  on  the  most  interesting  problems  of  the  philosophy  of 
law.  Rivera  Pastor,'  who  shows  inclinations  toward  Stamm- 
ler,  published,  comparatively  recently  (1910),  an  interesting 
discussion  of  the  doctrines  of  law  and  of  the  state  and  in  191 3 
a  monograph  on  the  "logic  of  liberty",  published  in  volume 

1  Gil  y  Robles,  Enrique.    Tratados  de  derecho  politico  segun  los  prin- 
cipios   de   la  filosofia  y   cl   derecho   cristianos  .    .    .  Salamanca, 
Salmanticense,  i88g.     2  v. 
Same.  El  absolutismo  y  la  democracia.  Salamanca,  J.  Nunez  Izquierdo, 

1891.     61  p. 
Same.     Ensajo  de   metodologia  juridica  .    .    .  Salamanca,  Salmanti- 
cense, 1893.     223  p. 
=  Dorado  Montero,  Pedro.     Bases  para  un  nuevo  derecho  penal.     Barce- 
lona, M.  Soler  [1902].     200  p. 
Same.     Valor  social  de  leyes  y  autoridades  .  .  .  Barcelona,  M.  Soler 

[1903].     201  p. 
Same.     El  derecho  y  sus  sacerdotes.     Madrid,   Rev.   de  legislacion. 
1909.     592  p. 
'  Rivera  Pastor,   Francisco.     Las  doctrinas  del   derecho  y  del  estado. 
Madrid,  V.  Suarez,  1910.     214  p. 


26  GUIDE   TO   THE    LAW    OF   SPAIN 

X  (1913),  pages  401-448,  of  the  Analcs  dc  hi  jtinla  para  am- 
plicacion  dc  esiudios.  Rios  Urruti,  also  a  disciple  of  Stamm- 
ler,  has  contributed  to  the  new  neokantian  philosophy  of  law 
his  monograph  "The  problem  of  the  continuity  in  politics" 
(volume  II,  igii,  pp.  1-24,  152-162,  La  Icctura)  and  some 
others,  as  well  as  his  introduction  to  the  translation  of  Jel- 
linek's  "General  theory  of  the  state." 

There  are  many  others  who  have  enriched  Spain's  legal 
literature  in  this  field.  Among  these,  Concepcion  Arenal 
occupies  a  prominent  place.  She  was  an  extraordinary 
penologist  and  moralist,  and  probably  the  foremost  woman 
publicist  of  the  world  in  this  field.  The  jurists  and  publicists, 
Santamaria  de  Paredes,  Alas,  Posada  and  Novarro  Flores  can 
not  be  omitted  in  a  roll  of  Spanish  writers  in  the  general 
branches  of  jurisprudence  and  philosophy  of  law. 

A  notable  achievement  in  Spain  for  the  advancement  of 
the  science  of  jurisprudence  and  comparative  law  was  the 
establishment  in  Madrid  of  the  Instituto  Ibcro-Amcricarw  dc 
Derecho  Positivo  Comparado  in  December,  1908.  The  found- 
ers comprise  many  of  the  leading  publicists  and  jurists  of 
Spain.  The  purpose  of  the  Institute  is  to  promote  and 
improve  juridical  and  social  relations  between  Spain  and  the 
Spanish-speaking  nations  of  America,  although  all  the  Ameri- 
can and  European  nations  are  invited  to  take  part  in  its 
program. 

LEGAL   HISTORY 

The  history  of  Spanish  law  assumes  far  more  than  a  local 
importance.  In  the  early  Spanish  codes  and  compilations  may 
be  traced  some  of  the  most  lasting  institutions  of  Roman  law, 
and  they  were  the  medium  through  which  Spain  carried  her 
law  into  the  new  world.  The  adminstration  of  the  Philippines 
and  other  former  Spanish  possessions  by  the  United  States 
has  brought  us  into  intimate  contact  with  much  of  the  law  of 
these  early  compilations,  and  revived  an  interest  in  their 
study. 

It  is  impossible  to  trace  the  law  and  legal  institutions  of 
Spain  to  the  time  anterior  to  all  foreign  contact.  The  Iber- 
ians and  the  Celts  are  sometimes  considered  indigenous 
inhabitants  of  Spain,  but,  according  to  better  opinion,  they 
were    invaders.     We    do    not    know    whether    or    not    there 


LEGAL   HISTORY  2? 

existed  amonR  Iheni  utilizablc  texts  of  law.  The  Plioeniciaii 
and  Greek  colcnizations,  which  followed  the  occupation  of  the 
Iberians  and  Celts,  have  likewise  left  us  no  texts.  J.  Costa' 
has  in  several  works  pubhshed  the  results  of  his  researches 
into  this  period  of  Spanish  legal  history,  and  "has  attempted 
to  differentiate  the  sources  of  the  customs  or  laws  of  the  first 
inhabitants  of  Spain  known  to  history."  His  Plan  dc  historia 
offers  especially  a  complete  guide  to  the  institutions  of  the 
Roman  and  civil  law  introduced  into  the  Peninsula  during  the 
period  of  Roman  rule  (200  B.  C.  to  400  A.  D.). 

The  Visigoths,  a  branch  of  the  great  nation  of  the  Goths, 
made  the  conciuest  of  Spain  in  the  fifth  century  and  created 
a  new  Germanic  law  by  the  side  of  the  Roman  law.  This 
Roman  law  the  conquerors  recognized  as  peculiar  for  Spanish- 
Romans  and  they  codified  it  during  the  reign  of  Alaric. 
This  compilation  is  known  in  history  under  the  name  of  the 
Breviary  or  Code  of  Alaric  (506)  and,  among  scholars  of 
the  present  day,  as  the  Lex  romana  visigothorum.  It  is 
interesting  to  note  that  no  Spanish  edition  of  this  code 
exists.  The  edition  generally  recommended  is  the  recent 
German  translation  made  by  Prof.  l\Iax  Conrat  (Cohn)^ 
from  Haenel's ''  Latin  edition,  which  furnishes  a  systematic 
classification  by  subject  matter.  The  German  influence  on 
Spanish  law  is  admirably  described  in  a  monograph  bv 
Hinojosa.  ^ 

The  customary  laws  of  the  Visigoths  were  codified  by  their 
King  Euric  (467-485)  who  is  accorded  the  honor  of  having 
been  the  compiler  of  the  earliest  code  of  the  laws  of  Spain.     It 

'  Plan  de  historia.  Ensayo  de  un  plan  de  historia  del  derecho  espanol  en 
laantigucdad.  By  Joaquin  Costa.  (Revista  general  de  legislacion 
y  jurisprudencia,  vol.  68,  1886,  pp.  527-5571  vol.  70,  1887,  pp. 
143-163,228-315;  vol.  74, 1889,  pp.  496-506;  vol.  75, 1889,  pp.  96-1 18, 

441-453)- 
Costa,  Joaquin.     Estudios  iWricos.     Madrid,  V.  Suarez,  1891-5.    207  p. 
Costa,  Joaquin.     Organizacion  politica,  civil  y  rcligiosa  de  los  celti- 

bericos.     Madrid,  M.  Murillo,  1879.     48  p. 
-Conrat  (Cohn),   Max.     Breviarium   Alaricianum;  roraisches  recht  iin 

franlcischen    reich    in    systematischer    d;u^tellung  .   .  .  Leipzig, 

J.  C.  Hinrichs,  1903.     813  p. 
3  Haenel,  Gustavos.     Lex  romana  visigotlioruni.     Lipsiae,  B.  G.  Teub- 

neri,  1849.     468  p. 
<  Hinojosa,    Eduardo    de.     Das   germanische    clement    im    spantschen 

rechte.     Weimar,  Hermann  Bohlaus  Nachf.     1910.     79  p 


28  GUIDE  TO  THE   LAW   OF   SPAIN 

is  not  certain  that  we  possess  to-day  the  text  of  this  code  of 
Euric. 

The  two  bodies  of  Spanish  population,  Latin  and  Teutonic, 
continued  to  live  under  this  double  system  of  law  until  the 
reign  of  Kindasvinth  (642-653).  He  reduced  the  dual  or  ra- 
cial legislation  to  one  common  code  based  on  all  the  prior 
codes  and  statutes.  His  son  and  succeeding  kings  modified 
and  added  to  this  code,  which  came  to  be  known  under  the 
name  "  Fuero  juzgo."  By  this  legislation  the  influence  of  the 
Germanic  spirit  became  fixed  as  one  of  the  universal  factors 
in  Spanish  law  and  temporarily,  at  least,  destroyed  the  work 
of  Romanization.  In  an  old  volume  (1S19)  of  the  Edinburgh 
Review  (vol.  31,  pp.  94-132)  there  is  a  short  description  in 
English  of  the  Gothic  laws,  especially  the  criminal  trials,  writ- 
ten in  an  interesting  but  "story-like"  style. 

The  "Fuero  juzgo"  is  known  under  the  following  names: 
" Codex  legum,"  " Liber  goihorum,"  " Lex  wisigothorum,"  "Li- 
ber judicum,"  and  "Forum  judicum" ;  the  latter  title  was 
changed  at  the  beginning  of  the  thirteenth  century  into  "Fuero 
juzgo"  by  which  it  is  now  known.  "Fuero  juzgo"  is  really 
a  contraction  of  "Fuero  de  los  jucccs,"  or  the  law  of  the  judges. 
It  arose,  as  has  been  shown,  from  the  gradual  fusion  or  amal- 
gamation of  the  Roman  and  Gothic  law.  The  doctrines  of 
civil  law  which  are  at  greatest  variance  from  the  strict  Roman 
law  are  those  relating  to  marriage,  conjugal  property,  family 
relationship,  some  principles  of  property,  and  much  of  the  law 
of  persons.  On  the  other  hand,  the  preponderance  of  the 
Roman  law  is  seen  in  matters  of  inheritance,  especially  testa- 
mentary, and  of  prescription  and  contracts;  though,  as  regards 
the  form  of  these  last,  a  broad  and  liberal  principle  prevails 
very  different  from  the  rigid  classification  of  the  Roman  law. 

In  form  the  "Fuero  juzgo"  has  little  pretension  to  method 
and  logical  arrangement.  It  contains  a  preliminary  title  and 
12  books  which  contain  54  titles,  subdivided  into  some  578 
laws,  parts  of  which  are  attributed  to  different  kings.  The 
preliminary  title  treats  of  the  election  and  duties  of  monarchs 
and  the  duties  of  their  subjects,  and  includes  the  public  law 
of  the  Visigothic  monarchy  formed  in  the  Fourth  Council  of 
Toledo.  Although  imperfect,  this  title  includes  in  reality  one 
of  the  earliest  written  constitutions  of  Europe  in  which  are 


LEGAIv  HISTORY  29 

recognized  principles  as  liberal  as  those  known  to  any  modern 
monarchical  constitution.  Within  the  12  books  are  contained 
laws  for  the  making  of  laws,  procedure,  family  relations,  ad- 
ministration of  estates,  contracts,  mortgages,  crimes,  torts, 
real  ])roperty,  maritime  commerce  and  various  questions.  An 
early  edition  of  this  code  has  been  translated  into  English  by 
S.  P.  Scott'  under  the  auspices  of  the  Comparative  Law  Bureau 
of  the  American  Bar  Association.  The  translation  and  the 
skill  of  the  editor  are  severely  criticised  by  some  of  the  lead- 
ing authorities  in  this  field.  Judge  Lobingier  presents  a  good 
summary  of  the  contents  of  the  Fiiero  juzgo  and  a  description 
of  its  sources  in  the  Illinois  Law  Review  volume  8  (1913)  pages 
1-18. 

For  historical  purposes  and  for  accuracy  the  edition  of  the 
"Fuero  juzgo"  by  Zeumer,^  published  under  the  section  of 
" Leges"  \nt\\&" Monumenta  gennanicB  hislorica,"  is  probably 
the  best.  The  Royal  Academy  ^  of  Spain  produced  in  1815 
an  edition  which,  as  a  literary  and  philosophical  work,  is  de- 
ser\'ing  of  much  commendation.  It  can  not  be  relied  on  for 
practical  reference,  however.  It  embodies  a  learned  disser- 
tation on  the  law  of  the  Visigoths  and  a  preliminary  title,  "  De 
electione  principum",  not  to  be  found  in  the  foreign  editions. 

Following  the  Arabic  conquest  of  the  Visigoths  in  the  eighth 
century,  a  vast  and  varying  body  of  law  arose  which  added 
to  the  complexities  of  Spanish  law.  Altamira  *  in  his  recent 
(1914)  work  on  questions  of  the  history  of  law,  discusses  the 
Moslem  rule  in  its  influence  upon  Spanish  law  and  presents 
a  compact  resume  of  the  period.  For  a  thorough  study  of 
the  influence  of  the  Moslem  rule  a  brochure  of  Urena  ^  may 
be  recommended.     This  article  was  reprinted  in  his  history 

'Scott,  S.   P.     The  visigotliio  code.     Boston,   Boston  Book  Co.,   1910. 

420  p. 
^  Monumenta  germaniae  historica.     Leges,  Sectio  1,  tomus  1,  Leges  visi- 

godiorum  edidit  Karolus  Zeiimcr.     Hannoverae,  Impcnsis  Bibliopo- 

lii  Hahniani,  1902.     pp.  33-456. 
^  Fuero  juzgo  en  latin  y  castellano,  cotejado  con  los  mas  antiguos  y  preci- 

osos  codices  por  la  Real  Academia  Espanola.     Madrid,  Ibarra,  1815. 

231  P- 
*  Altamira yCrenea,  Rafael.     Cuestioncs  del  historia  de  derecho  y  legisla- 

cion  comparada.     Madrid,  Sucesores  de  Hernandez,  1914.     402  p. 
'  Ureiia  y  Sraenjaud,  Rafael  de.     La  influencia  scmita  en  el  derecho 

medioval  de  Espaiia.     Madrid,  Rev.  de  legislacion,  i8y8.     44  p. 


30  GUIDE   TO   THE   LAW   OF   SPAIN 

of  Spanish  legal  literature,'  which  is  a  summary  of  the  lectures 
on  the  history  of  Spanish  legal  literature  delivered  by  Urena 
at  the  University  of  Madrid,  1907-1908.  The  lectures  include 
a  study  of  the  legal  literature  of  primitive,  Roman,  Gothic 
and  Arabic  Spain.  In  Martinez  Marina's^  historical  work 
there  may  be  found  an  account  of  the  institutions  of  public 
and  private  law  in  this  period. 

The  rulers  of  Castile,  whose  power  became  predominant 
among  the  small  states  that  had  been  established,  promul- 
gated several  general  codes  and  compilations  of  laws.  Among 
these  the  Fuero  viejo  (121 2)  was  more  particularly  designed 
to  define  and  sanction  the  prerogatives  of  the  nobility.  An 
edition  of  this  compilation  was  published  by  Asso  and  Man- 
uel *  in  1 77 1  in  their  collection  which  includes,  in  addition, 
El  ordenamiento  de  leyes  de  Acald,  with  notes  and  reports  of 
the  Cortes  convened  in  the  reigns  of  Sancho  IV  and  Ferdinand 
IV.  It  is  also  fully  treated  of  in  the  works  of  Manrichalar 
and  Manrique  in  their  history  of  Spanish  legislation  (infra, 

p.  38). 

The  Fuero  viejo  was  followed  by  the  important  code  which 
Alfonso  X  issued  in  1254,  known  connnonly  as  the  Fuero  Real. 
This  was  an  example  of  the  unitive  tendency  manifested  at 
different  times.  The  code,  which  became  a  model,  was  based 
on  all  the  fueros  and  especially  the  Fiiero  jiizgo,  with  modifi- 
cations, embracing,  in  four  books,  political,  procedural,  civil, 
criminal  and  commercial  law.  The  original  text  was  modi- 
fied by  Alfonso  X  himself  in  1278-1279  and  by  the  Cortes  of 
Valladolid  in  1293. 

There  are  several  editions  of  this  code,  although  none  of 
any  critical  value.  The  leading  and  most  reliable  was  edited 
with  a  commentary  in  Latin  by  Diaz  de  Montalvo  in  1500, 
and  another  by  the  Academy  of  History  of  Madrid  *  in  1836, 

'  Urena  y  Smenjaud,  Rafael  de.  Historia  de  la  litcratura  juridica  cspa- 
fiola.  Intento  de  una  historia  de  las  ideas  juridicas  en  Espafla.  2d 
ed.     Madrid,  I.  Moreno,  igo6.     2  v. 

^  Infra,  p.  37. 

^  Asso  y  del  Ria,  Ignacio  Jordan  de,  and  Manuel  y  Rodriguez,  Miguel  de. 
El  fuero  viejo  dc  Castilla  .  .  .  y  con  otros  mss  .  .  .  Con  notas  hist6- 
ricas,  y  legales.     Madrid,  de  Camara  de  S.  M.,  1771.     56,143  p. 

*  Opusculos  legales  de  Rey  Don  Alfonso  el  Sabio.  Publicados  y  cotejados 
con  varios  codices  antiquos  por  la  Real  Academia  de  la  Historia. 
Madrid,  Real,  1836.     2  v. 


LEGAL  HISTORY  3 1 

published  in  their  two  volume  collection  of  codes.  This  col- 
lection in  volume  one  includes  " El F.speculo,  or  "Mirror of  all 
the  laws",  and  in  volume  two,  the  Fuero  Real  and  some  other 
leycs  of  lesser  importance.  There  is  also  an  edition  published 
in  the  collection  of  the  publishing  house  of  La  Publ-icidad} 
This  is  a  full  and  comi)lete  collection  of  ancient  codes  including 
the  Fuero  jttiqo,  the  Fuero  viejo,  the  Leyes  del  estilo,  the 
Fiiero  real,  the  Ordenamiento  de  Alcald,  the  Swie  partidas, 
Especulo,  Ordenanza  de  CasiiUn,  Nueva  recopilaeion,  Novisima 
recopUacion,  Autos  acordados,  and  the  Ordenanza  de  Bilbao. 
The  text  of  Diaz  de  Montalvo  -  was  republished  in  1781  with 
references  to  similar  passages  in  the  Partidas.  The  Latin 
comment  to  his  edition  of  1500  is  appended. 

Alfonso  X  promulgated  other  groups  of  statutes  after  the 
Fiiero  real,  e.  g.  the  Leyes  nuevas,  which  dealt  with  only  a  few 
topics,  such  as  the  relations  between  Christians  and  Jews  in 
the  matter  of  loans,  civil  procedure  and  inheritance.  There 
was  also  prepared  in  1258,  under  the  command  of  Alfonso  X 
or  on  his  private  initiative  a  compilation  of  a  legal  character 
analogous  to  the  Septenario  conceived  of  and  partially  pre- 
pared by  Fernando  III,  which  compilation  directly  preceded 
the  Partidas  and  followed  the  Especulo.  The  title  Especulo 
(or  Espejo)  or  "Mirror  of  all  the  laws"  was  a  name  much  used 
at  the  time  throughout  Europe  to  designate  doctrinal  trea- 
tises. The  Especulo  was  utilized  by  lawyers  of  the  time  as  a 
text  and  reference  book.  The  Madrid  Academy  of  History 
issued  an  edition  of  the  Especulo  in  1836. 

The  great  legal  compilation,  the  Codigo  de  las  Stele  Partidas 
(or  the  Code  of  Seven  Parts)  was  begun  in  1256  and  was  com- 
pleted about  1265.  Its  preponderant  elements  were  the 
canon  law  and  Roman  law.  In  fact  the  general  character  of 
the  Partidas  is  that  of  an  encyclopedia  or  systematic  com- 
pendium of  these  two  legal  systems.  The  redaction  of  the 
Partidas  was  the  work  of  several  jurists,  whose  names  are  not 
cited  in  the  text,  and  was  done  under  the  supervision  of 
Alfonso,  who  was  himself  an  author  of  zeal.     This  work  also 

'Los  codigos  espanoles,  concordados  y  anotados.  Madrid,  "La  Pub- 
licidad,"  1847-1851.     12  v. 

*  Diaz  de  Montalvo,  Alonso.  El  Fuero  real  de  Espafia,  por  Don  Alfonso 
IX:  glosado  ad  icionado,  y  concordado  con  his  Sicte  Partidas  y 
Leyes  del  Rcino.     Madrid,  Pantaleon  Aznar,  1781.     2  v. 


32  GUIDE    TO   THE    LAW    OP    SPAIN 

bears  the  name  of  Libro  de  las  leyes.  The  book  is  divided  into 
seven  general  headings,  as  follows:  ist,  The  catholic  faith; 
2nd,  emperors,  kings;  3rd,  justice;  4th,  marriage;  5th, 
contracts;  6th,  wills;  7th,  criminal  law.  S.  P.  Scott  of  the 
Comparative  Law  Bureau  has  translated  this  code  into  Eng- 
lish and  the  Bureau  announces  that  it  will  soon  be  published 
(1914).  The  best  edition  for  practical  purposes  and  the 
one  used  by  the  courts  is  that  of  Lopez,'  published  under 
royal  authority  in  the  years  1 829-1 831.  The  edition  of  1807, 
by  the  Spanish  Academy  of  History  -,  is  inaccurate  for  practical 
purposes,  and  in  a  decision  of  the  Supreme  Court  of  March  27, 
i860,  it  was  decided  that  in  case  of  conflict  between  this  edition 
and  that  of  Lopez,  the  latter  should  prevail.  A  reprint  of  this 
work  was  published  in  Paris  about  forty  years  later.  Judge 
Lobingier  recently  published  in  the  Annual  Bulletin  of  Com- 
parative Law  Bureau,  volume  6  (191 3),  pages  33-50,  a  brief 
analysis  of  this  great  Spanish  law  book  of  the  Middle  Ages, 
and  in  an  article  in  the  California  Law  Review  [vol.  i  (1913) 
pp.  487-498]  the  same  author  discussed  it  and  its  predecessors. 

The  Partidas  did  not  become  the  law  of  the  land  until 
nearly  a  century  after  its  first  appearance.  But  as  a  direct 
result  of  it  and  of  the  renewed  prestige  of  Roman  law  the 
struggle  between  Romanism  and  the  native  law  arose  and  con- 
tinued for  several  centuries.  The  Ordenamiento  de  Alcald 
was  published  in  1348  by  Alfonso  XL  It  presents,  in  the 
order  of  their  authority,  the  different  sources  of  law,  such  as 
the  statutes  enacted  in  the  Cortes,  the  fueros  etc.  The 
Partidas  was  made  a  supplementary  law  and  was  given  royal 
sanction.  No  edition  of  the  Ordenamiento  can  be  recom- 
mended. The  text  as  it  appears  in  the  collection  of  Asso  and 
Manuel  {supra,  p.  30)  is  equal  to  any,  but  it  is  admittedly 
defective. 

The  various  codes,  fueros,  and  compilations  existing  at  this 
period  of  the  law  caused  a  great  complexity  of  the  positive 
law,  and  the  resulting  confusion  and  doubt  continually  led  to 
attempts  to  determine  what  was  obligatory  in  any  case. 

'  Lopez,  Gregoria.     Las  siete   partidas  .  .  .  glosadas  par  .   .  .  Madrid, 

Leon  Amarita,  1829-1831.     4  v. 
-  Las  siete  partidas  .  .  .  cotejadas  con  varios  codices  antiguos  .  .  .  Par 

la  Real  Academiade  la  Historia.     Madrid,  Impr.  Real,     1807.     3  V. 

Same.     Nuevaed.     Paris,  Castellana,  1846.     2  v. 


LEGAL   HISTORY  33 

The  changes  in  the  political  order  during  the  reign  of  Ferdi- 
nand and  Isabella  produced  a  great  development  of  legislation. 
These  rulers  attempted  to  introduce  some  order  into  the  sys- 
tem of  legislation  by  the  publication  of  the  Oidoiamiento  real 
(1490)  and  the  Leyes  de  Ton  (1502).  Instead  of  simplifica- 
tion they  only  tended  to  increase  the  confusion.  The  first 
Onicnatniento  was  popularly  known  as  the  Ordcnamiento  del 
Doctor  Monialvo,  because  it  was  edited  by  a  distinguished 
jurist,  Alfonso  Diaz  de  Montalvo,  together  with  Galindez  de 
Carvajol,  under  a  commission  from  Queen  Isabella.  It  was 
a  collection  of  laws,  but  did  not  attain  legal  authority.  The 
last  edition  of  this  code  was  issued  in  the  collection  of  the 
publishing  house  of  La  Puhlicidad  in  1872.  The  Leyes  de 
Toro  or  the  "Laws  of  Toro"  was  in  no  sense  a  code,  but  it  had 
as  its  object  to  explain  and  supply  defects  in  existing  legis- 
lation. It  inclined  usually  to  the  Roman  and  canon  law  in 
the  struggle  between  Roman  law  and  native  law.  A  com- 
mentary on  this  statute  by  Llamas  '  appeared  in  a  second 
edition  in  1852.  Pacheco's  -  commentary  of  this  law  may 
also  be  noted. 

The  spread  of  the  Justinian  and  canon  laws  in  the  lesser 
kingdoms  of  the  Peninsula,  e.  g.  Aragon,  Catalonia,  Narvarre, 
Basque  provinces,  and  Guipuzcoa,  marks  an  important  event 
in  the  history  of  the  law.  These  kingdoms,  now  provinces, 
began  to  secure  special  rights  and  powers,  many  of  which  are 
yet  retained.  These  form  a  body  of  law  entitled  "derecho 
fatal"  {infra,  p.  42),  which  often  discloses  conflicts  with,  and 
raises  obstacles  to,  attempted  current  legislation.  The  abun- 
dance of  legislation  during  the  period  of  the  absolute  mon- 
archy, along  with  the  tendency  toward  codification  in  sys- 
tematic form,  caused  repeated  petitions  in  Castile  for  new 
collections,  and  in  the  other  kingdoms  for  the  continuation 
of  those  already  instituted  in  the  preceding  period.  In  the 
reign  of  PhiUp  II  the  Niicva  recopilacion  (1567),  intended  as 
a  general  code,  was  finally  promulgated,  and  furnishes  some 

'Llamas  y  Molina,  Sancho  de.  Leyes  de  Toro.  Comentario,  critico- 
juridico-Iiteral  a  las  leyes  de  Toro.  2d  ed.  Madrid,  Sanchez, 
1852.     600  p. 

^Pacheco,  Jos6  F.  Comentarios  de  las  leyes  de  Toro.  Madrid,  Gello, 
1862-1876.     2  V. 

77231°— 15 3 


34  GUIDE   TO  THE   LAW   OF   SPAIN 

guide  to  the  general  law  of  the  Kingdom,  although  it  is  far 
from  satisfactory.  It  turned  out  to  be  no  more  than  an 
elaboration  of  Montalvo's  compilation  in  its  identical  elements. 

The  earlier  codes  retained  in  the  main  their  authority. 
Many  statutes  were  enacted  and  pragmatics  and  orders  were 
issued  by  the  House  of  Austria;  the  greatest  in  number  and 
importance  being  those  relative  to  the  colonies  (Lcyes  de  Indias, 
1680).  The  attempts  and  struggles  in  Castile  for  an  authentic 
compilation  were  reenacted  in  Aragon,  Catalonia,  Valencia, 
and  other  kingdoms  and  provinces.  This  period,  known  as 
the  "Hapsburg  period,"  was  prolific  in  legal  literature. 

The  house  of  Bourbon  abrogated  but  little  of  the  Castilian 
law.  No  new  codes  were  introduced  and  only  a  few  institu- 
tions of  the  existing  codes  were  changed.  The  1700's  consti- 
tuted a  period  of  great  reforms  in  the  social  and  political  life 
of  Spain.  In  successive  and  enlarged  or  revised  editions  of 
the  Nueva  recopilacion  (between  1567  and  1777)  there  were 
brought  together  new  royal  orders  and  the  important  decrees 
or  decisions  of  the  Council  of  Castile  {Consejo  de  Castilla). 
The  Bourbons  ended  the  work  of  political  unification  begun 
by  the  Austrian  house  by  annulling  many  of  the  special  laws 
enjoyed  by  Catalonia,  Majorca,  Valencia  and  Aragon — in  each 
state  those  regarding  the  public  law  (with  slight  exceptions), 
and  in  Valencia  those  regarding  the  civil  law  as  well.  The 
colonial  statutes  relating  to  industry  and  public  instruction 
were  modernized  as  were  also,  in  part,  those  which  defined  the 
relations  of  church  and  state.  The  legislative  diversity,  both 
as  between  the  different  ancient  kingdoms  of  the  Peninsula 
and  also  within  Castile  itself,  continued  particularly  in  the 
civil  law.  The  jurists  of  the  eighteenth  and  early  nine- 
teenth centuries  proved  unequal  to  the  task  of  fusing  all 
these  elements  into  one  code  or  even  into  two,  one  of  public 
and  one  of  private  law. 

The  compilation  of  laws  known  as  the  Novisima  recopila- 
cion (1805)  is  a  chaos  of  general  provisions,  applying  particu- 
larly to  Castile,  but  also  affecting  the  whole  of  Spain.  Within 
12  books  are  mingled  provisions  governing  the  Cortes,  jucros, 
kings  and  Council  of  Castile  from  the  medieval  period  down 
to  the  date  of  publication.  The  " Novisima"  did  not  satisfy 
the  necessity  which  it  assumed  to  meet,  that  is,  of  concen- 


LEGAL   HISTORY  35 

tratiiig  the  legislative  law.  There  is  a  six  volume  edition  of 
the  Novisima  recopilacion  •,  published  in  Madrid  in  1829. 

The  ancient  codes  of  Spain  were  reprinted  in  full,  in  a  large 
volume,  in  1885,  by  Martinez  Alcubilla.-  A  glossary  of 
ancient  legal  terms  is  given.  It  appears  to  be  the  most  com- 
pact and  practical  collection. 

It  is  a  remarkable  feature  of  the  legislation  of  Spain  that  at 
no  time  was  any  attempt  made  to  promulgate  a  new  code 
which  would  abrogate  the  old  one.  Hence,  to  determine  the 
law  on  any  given  subject  all  the  different  codes  must  be  exam- 
ined, with  the  hraitation  that  the  latest  in  point  of  time  is 
first  in  authority.  The  Fuero  viejo  has  been  so  modified  and 
changed  by  subsequent  enactments  that  it  can  no  longer  be 
consulted  for  any  useful  purpose.  All  that  remains  useful  of 
the  Ordcnamienio  real  and  the  Leyes  de  Toro  has  been  incor- 
porated into  the  Ntwva  and,  finally,  into  the  Novisima  recopila- 
cion. The  Novisima  recopilacion  is  the  latest  as  well  as  the 
highest  authority,  but  when  it  is  silent  some  diversity  of 
opinion  exists  as  to  which  of  the  remaining  codes  ought  to 
prevail.  Some  authors  give  the  preference  to  the  Partidas, 
others  to  the  Fiwro  jnzgo,  or  to  the  Fuero  real — the  general 
legislation  of  Spain  being  found  in  these  four  codes  or  com- 
pilations. 

In  the  last  century  of  reform  and  innovation  in  Spain, 
numerous  constitutions  were  adopted  and  repealed  imtil 
the  adoption  of  the  Constitution  of  1876,  now  in  force. 
Civil,  commercial,  criminal  and  military  law  have  all  been 
embodied  in  separate  codes  which  are  complete  and  are  appli- 
cable throughout  the  entire  kingdom.  A  judiciary  act  and 
codes  of  civil  and  criminal  procedure  have  also  been  enacted. 
The  most  important  step  in  recent  Spanish  history  was  the 
appointment  in  1910  of  a  commission  to  revise  and  recodify 
the  civil,  penal  and  procedural  codes  and  the  judiciary  laws. 
This  commission  is  composed  of  nine  members  under  the  ex 
officio  presidency  of  the  Minister  of  Grace  and  Justice  and  has 

'  Novisima  recopilacion  de  las  leyes  de  Espana,  dividida  en  12  libros. 

Madrid,  Julian  Viana  Razola,  1805-1829.     6  v. 
-  Martinez  Alcubilla,  Marcelo.     Codigos  antiguos  de  Espana  .  .  .  dcsde 

el  Fuero  juzgo  hasta  la  Novisima  recopilaci6n.     Madrid,  Adminis- 

tracion,  1885.     2,050  p. 


36  guide;  to  the  law  of  spain 

been  commanded  to  proceed  at  once  with  the  task  assigned. 
Nothing  of  importance,  however,  has  resulted  publicly  from 
the  four  years'  existence  of  this  body. 

In  suggesting  and  recommending  works  on  legal  history,  it 
must  be  confessed  that  there  is  a  great  inadequacy  of  historical 
accounts.  Those  we  have  are  fragmentary,  and  are  usually 
either  histories  of  the  development  of  certain  institutions  fol- 
lowed from  text  to  text  through  the  so-called  codes  with  indi- 
cation of  the  changes  that  these  record,  or  are  histories  of 
brief  periods  of  Spanish  law. 

In  1908  Rafael  Altamira,  one  of  the  two  or  three  foremost 
legal  historians  of  Spain,  presented  an  account  of  the  actual 
state  or  condition  of  the  works  on  Spanish  legal  history  to 
the  International  Congress  of  Historical  Science.  The  paper 
was  reprinted  in  a  French  magazine,  the  Bulletin  hispanique, 
volume  II  (1909),  pages  173-199.  The  writer  criticizes  the 
existing  works  on  legal  history,  and  in  addition  discusses  the 
teaching  of  the  subject.  For  English  readers  by  far  the  best 
and  most  concise  work  on  Spanish  legal  history  is  the  chapter 
(pages  577-702)  on  Spain  in  the  first  volume  of  the  Continental 
Legal  History  Series.'  This  contribution  was  made  by  Rafael 
Altamira.  Within  the  brief  space  of  125  pages  are  covered 
the  origin,  early  growth  and  development  of  the  various 
influences  on  the  law  down  through  the  nineteenth  century, 
with  its  great  legal  reforms. 

In  1852  the  German  publicist  Brauchitsch  wrote  a  short 
history  of  Spanish  law.^ 

There  are  several  treatises  in  English  on  the  civil  law  of 
Spain  which  give  by  way  of  introduction  brief  sketches  of  the 
legal  history.  Among  these  may  be  mentioned  Walton's  ' 
"Civil  law  in  Spain  and  Spanish  America."     There  is  also  a 

'The  continental  legal  history  series.  Vol.  I,  Historical  survey  of 
the  sources,  literature  and  general  development  of  continental  law. 
By  R.  Altamira,  H.  Brissaud,  H.  Brunner,  C.  Calisse,  E.  Hertzberg, 
E.  Huber,  M.  Planiol,  R.  Stintzing,  J.  A.  Van  Hamel,  and  oUiers. 
Translated  by  Rapelje  Howell,  Francis  S.  Philbrick,  and  John  H. 
Wigmore.     Boston,  Little,  Brown  and  Co.,  1912.     754  p. 

'Brauchitsch,  Heinrichvon.  Geschichte des spanischen rechts.  Berlin, 
Allgcmeine  deutsche  verlagsanstalt,  1852.     203  p. 

^  Walton,  Clifford  Stevens.  The  civil  law  in  Spain  and  Spanish- 
America.     Washington,  D.  C,  Lowdermilk  and  Co.,  1900.     672  p. 


LEGAL   HISTORY  37 

somewhat  older  work  by  Schmidt '  of  the  Louisiana  bar  which 
contains  an  historical  introduction  to  the  law  and  the  various 
codes. 

Among  the  most  creditable  efforts  in  legal  history  is  the 
treatise  of  Sempere,-  a  writer  of  authority.  The  first  edition, 
in  1822,  was  published  under  sanction  of  the  Government. 
This  work  traces  the  Spanish  law  from  the  earliest  sources 
through  the  Novisima  recopilacion.  The  third  edition  con- 
tinues the  history  down  to  the  middle  of  the  nineteenth  cen- 
tury. The  most  reputable  general  history  of  law  was  begun 
by  Hinojosa,'  the  leading  authority  in  the  field,  but  only 
one  volume  has  been  published.  Nevertheless,  this  is  an 
important  contribution  and  covers  the  period  through  the 
Visigothic  domination.  Hinojosa^  has  also  published  a  one- 
volume  book  of  studies  on  the  history  of  Spanish  law,  wliich 
contains  among  other  matters  a  discussion  of  the  origin  of 
the  municipal  system  in  Leon  and  Castile. 

Reference  may  be  made  to  the  historical  work  of  Chapado 
Garcia '^  which  professes  to  give  an  account  of  the  "prepara- 
tion" to  the  "consummation"  of  Spanish  law,  but  in  fact  is 
of  little  value.  The  critics  are  extremely  severe,  charging 
even  plagiarism.  Altamira  "  in  1903  published  a  short  essay 
on  "preliminary  questions"  of  Spanish  legal  history. 

There  are  numerous  historical  accounts  of  Spanish  legis- 
lation. An  essay  by  Martinez  Marina  '  on  the  ancient  legisla- 
tion and  the  principal  bodies  of  laws  of  Leon  and  Castile,  and 

'  Schmidt,  Gustavus.  The  civil  law  of  Spain  and  Mexico.  New  Or- 
leans, La.,  Thomas  Rea,  1851.     376  p. 

^  Sempere,  Juan.  Historia  del  derecho  espafiol.  Continuada  hasta 
nuestros  dias.     3d,ed.     Madrid,  Rodriguez  de  Rcvera,  1846.     571  p. 

*  Hinojosa,  Eduardo  de.     Historia  general  del  derecho  espanol.     Madrid, 

los  Hu^rfanos,  18S7.     378  p. 

*  Hinojosa,  Eduardo  de.     Estudios  sobre  la  historia  de  derecho  espanol 

Madrid,  los  Hu6rfanos,  1903.     248  p. 
'  Chapado  Garcia,   Eusebic    M.     Historia  general    de  derecho  espanol. 

Valladolid,  Jorge  Montero,  1900.     971  p. 
n  Altamira  y  Crevea,  Rafael.     Historia  de  derecho  espanol.     Cuestiones 

preliminarcs.     Madrid,  V.  Suarez,  1903.     220  p. 
'  Martinez  Marina,   Francisco.     Ensayo  historico-critico   sobre  la  Icgis- 

lacion  y  principales  cuerpos  legales  de  los  reinos  de  Leon  y  Castilla, 

especialmente  sobre  el  codigode  las  sietepartidas.     3d.  ed.     Madrid, 

Sociedad,  1845.     574  p. 


38  GUIDE   TO   THE   LAW   OF   SPAIN 

chiefly  of  the  Siete  partidas,  may  especially  be  noted.  An 
article  by  Torres  y  Aguilar,  a  former  professor  of  the  Univer- 
sity of  Madrid,  in  volume  6  of  the  Journal  du.  droit  interna- 
tional prive  (1879),  pages  27-40,  discusses  briefly  the  different 
ancient  codes  and  their  influence  on  modem  Spanish  law, 
especially  the  conflict  of  laws.  The  most  extensive  history 
of  Spanish  legislation  is  that  of  Marichalar  y  Manrique.'  It 
was  prepared  with  special  reference  to  the  civil  and  private 
law.  The  first  volume,  after  an  historical  introduction, 
begins  with  the  Roman  period.  In  the  other  volumes  the 
legislation  through  the  reign  of  Isabel  II  is  discussed.  The 
following  states  and  provinces  of  the  Peninsula  still  retaining 
the  foral  or  local  law  are  individually  covered — Navarre,  Ara- 
gon,  Catalonia,  Valencia,  Provinces  Vascongados,  Vizcaya, 
Guipuzcoa,  and  Alava — while  in  addition  colonial  legislation  is 
discussed.  A  few  other  works  on  Spanish  legal  history  which 
might  have  been  mentioned  have  been  intentionally  omitted 
because  of  their  inaccuracy  or  unreliability. 

CIVIL  CODE 

HISTORY 

The  Spanish  civil  code  was  promulgated  in  the  Peninsula 
by  the  royal  decree  of  July  24,  1889,  and  was  extended  to 
the  colonies  on  July  31,  1889.  It  has  not  proven  entirely 
satisfactory.  This  is  due  perhaps  to  the  peculiar  conditions 
created  by  the  concurrent  existence  of  the  foral  or  local  law 
enjoyed  by  several  provinces  and  the  adoption  of  some  French 
institutions  foreign  to  Spain.  It  is  interesting  to  note  that 
two  eminent  foreigners,  A.  Leve,  who  translated  the  code 
{infra,  p.  48)  and  Judge  Lobingier  ("A  Spanish  object-lesson 
in  code-making")  in  volume  16  of  the  Yale  Law  Journal, 
pages  411-416,  compliment  it  highly,  whereas  severe  criticism 
is  levelled  against  it  by  the  two  leading  contemporary  authori- 
ties in  Spain,  Sanchez  Roman  and  Clemente  de  Diego,  in  their 
treatises. 
Legislative  his-  'j'j^g  history  of  the  code  begins  with  article  259  of  the  Con- 
stitution of  Cadiz  which  lays  down  at  once  the  principles  of 

'  Marichalar,  Amalio,  and  Munrique,  Cayetano.  Historia  de  la  legis- 
lacion  y  recitaciones  del  derecho  civil  de  Espafla.  Madrid,  Nacio- 
nal,  1861-1872.    9  V. 


tory. 


CIVIL  CODE  39 

unification  and  codification — "A  single  civil  code  shall  he  in 
force  in  all  the  dominions  of  the  Spanish  monarchy."  The 
Corles  of  Cadiz  approved  in  i8ii  the  resolution  of  the  Dipu- 
tado  (Deputy)  Espiga  to  codify  the  most  important  branches 
of  the  Spanish  law.  In  furtherance  of  this  project  a  committee 
of  distinguished  men  was  appointed  in  1813  to  accomplish 
the  work,  but  the  violent  reaction  of  1814,  and  the  return  of 
Ferdinand  VII  to  the  Spanish  throne,  terminated  these 
preparations.  The  Cortes  during  the  second  constitutional 
regime  in  1821  made  another  attempt  to  accomplish  codifi- 
cation but,  owing  to  the  reaction  in  1823,  it  likewise  failed. 

Private  interest  kept  the  enterprise  alive,  notwithstanding 
the  opposition  in  official  circles,  and  Pablo  Gorosacal  became 
the  first  to  publish  a  project.  Another  was  later  formulated 
by  Manuel  Maria  Cambronero,  which  was  completed  by  other 
jurists  in  1836  and  officially  presented  to  the  Cortes  in  1839, 
but  no  action  was  taken  upon  it  by  the  legislative  power. 

In  1843  by  royal  decree  a  code  commission,  composed  of  24 
eminent  men,  was  established.  The  work  done  by  this  Com- 
mission (1843-1846)  was  the  first  officially  accomplished 
toward  a  civil  code  (namely,  books  i  and  2,  and  part  of  book 
3).  Subsequently  a  committee  of  six  succeeded  to  the  work, 
and,  in  1851,  laid  before  the  government  the  draft  of  a  com- 
plete code,  chiefly  based  upon  the  Castilian  civil  law,  with 
the  addition  of  a  number  of  principles  taken  from  the  regional 
laws  and  others  taken  from  foreign  systems,  especially  from 
the  French.  With  respect  to  this  draft,  attention  may  be 
called  to  the  contemporary  work  of  Garcia  Goyena,'  who  was 
the  vice  president  of  the  General  Code  Commission  and  presi- 
dent of  the  section  on  the  civil  code,  as  it  contains  a  full 
discussion  of  the  draft  code,  with  an  individual  treatment 
of  each  article. 

The  committee  fixed  seven  general  "bases"  for  the  codifi- 
cation, which  was  afterwards  divided  into  sections.  This 
project  was  published,  from  time  to  time,  to  facilitate  the 
examination,  study  and  criticism  of  the  codification  and  to 
induce  the  different  tribunals,  authorities,  societies  of  law- 
yers, universities,  and  persons  interested  to  make  suggestions 

'  Garcia  Goyena,  Florencio.  Concordancias,  motivos  y  coincntarios  del 
codigo  civil  espanol.  Madrid,  la  Socicdad  Tipografico-Editorial, 
1852.     4V. 


40  GUIDE  TO  THE   LAW   OF   SPAIN 

and  recommendations.  The  difficulties  and  prejudices  en- 
countered were  severe  and  great,  as  each  section  of  the 
Peninsula  was  unwilling  to  give  up  its  own  legislation.  This 
marks  the  close  of  the  first  epoch  in  history  of  the  civil  code 
in  which  the  "foral"  or  local  laws  were  disregarded. 

The  inauguration  of  the  attempt  to  harmonize  may .  be 
called  the  second  historical  epoch  of  the  code.  After  the 
rejection  of  the  draft  above  mentioned  the  ideal  reappeared 
in  1880  with  the  definite  aim  of  fusing  the  Castilian  civil  law 
with  that  of  the  other  regions  of  the  Peninsula.  To  this  end 
there  were  added  to  the  code  commission  members  represent- 
ing Aragon,  Catalonia,  Marjorca,  Navarre,  Biscay,  and 
Galicia.  Nevertheless  the  draft  of  a  uniform  code  (or  at 
least  one  general  for  the  Peninsula)  came  to  nothing.  The 
foral  territories  clearly  manifested  their  intention  to  con- 
serve intact  their  own  law  without  fusion  with  the  Castilian; 
and,  indeed,  even  to  exclude  its  influence  altogether. 

It  appears  that  the  public  authorities  were  doubtful  about 
the  proceedings  to  be  followed  in  reference  to  the  formation 
of  a  code.  Therefore,  in  1881 ,  the  Minister  of  Grace  and  Jus- 
tice, Alonso  Martinez,  presented  to  the  Cortes  first  a  statute 
embodying  the  principles  of  a  code  ("Ley  de  bases")  and 
afterwards  the  partial  text  of  one. 

His  labor  was  rendered  fruitless,  however,  through  political 
changes.  Several  years  later,  in  1885,  another  Minister  of 
Grace  and  Justice,  Francisco  Silvela,  presented  to  the  Cartes 
a  draft  of  new  "bases"  upon  which  to  form  a  civil  code,  which 
was  enacted  into  law  May  11,  1888.  It  is  worthy  of  notice 
that  so  much  importance  was  given  to  the  enterprise  by  the 
general  public  that  the  Royal  Academy  of  Jurisprudence  and 
Legislation  convened  a  judicial  congress  in  which  the  most 
important  matters  of  the  Spanish  civil  law  were  discussed, 
and  certain  recommendations  made. 

By  the  statute  of  1881  introduced  by  the  Minister  of  Grace 
and  Justice,  the  government  was  authorized  to  publish  a  code 
which  was  to  be  prepared  by  the  section  on  civil  law  of  the 
General  Code  Commission,  and  to  comprise  the  Castilian  law 
alone.  As  regards  the  "provinces  and  territories  in  which 
there  exists  a  foral  law,"  it  was  declared  that  this  should  be 
respected  "for  the  time  being,  in  all  its  integrity,  without 
alteration  of  their  present  legal  system  by  the  publication  of 


CIVIL    CODE  41 

the  code,"  and  that  the  code  in  those  provinces  should  be  merely 
"an  authority  supplementary  to  gaps  that  may  exist  in  their 
special  law."  The  code  was  accordingly  published  by  royal 
decree  of  October  6,  1888,  to  go  into  effect  sixty  days  after 
the  Cortes  had  approved  it.  A  royal  order  was  issued  February 
II,  1889,  declaring  the  code  in  force  May  i,  1889.  Some 
serious  defects  were  observed  and  a  revision  ordered.  The 
work  was  done  practically  by  one  man,  Azcarate,  and  the 
re\'ised  edition  was  ready  in  two  months.  This  code  has  been 
in  force  since  July  24,  1889.  It  is  exceedingly  important  to 
notice  the  fact  that  the  first  edition  was  only  in  effect  from 
May  I  to  July  24,  1889.  The  code  was  extended  to  Cuba,  the 
Philippine  Islands,  and  Porto  Rico  on  July  31,  1899.  In  1910 
a  commission  composed  of  three  jurists  and  the  President  of 
the  Supreme  Court  {Sala  de  lo  civil)  was  appointed  to  revise 
the  civil  code  but  to  date  nothing  has  publicly  appeared  from 
their  work. 

In  Volume  I  of  his  "  E studios  de  dcrecho  civil,"  Sdnchez 
Roman  '■  gives  an  historical  account  of  Spanish  legislation 
with  a  complete  and  detailed  recital  of  the  preparation  and 
legislative  history  of  the  civil  code.  These  " Esltidios"  will 
be  discussed  more  at  length  under  the  general  liteiature  of 
civil  law.  The  public  debates  -  in  the  Senado  when  the  bill 
was  under  discussion,  particularly  those  of  Azcarate,  afford 
interesting  reading,  as  do  the  articles  published  in  this  con- 
nection in  the  press,  as,  e.  g.  the  anonymous  ones  that  appeared 
in  the  newspaper.  La  Justicia.  Altamira  in  his  article  on 
Spain  in  the  first  volume  of  the  Continental  Legal  History 
Series  {supra,  p.  36)  presents  a  terse  description  of  the  redac- 
tion of  the  civil  code. 

The  code  of  18S9  does  not  satisfy  the  aspirations  for  codi- 
fication, both  because  of  the  many  gaps  which  it  left  and 
because  it  left  untouched  not  a  few  prior  laws  such  as  the 
statutes  of  civil  registry,  hypothecary  law,  waters,  mines, 
hunting  and  fisheries,  etc.     The  question  of  the  relation  of 

'  Sanchez  Roman,  Felipe.  Estudios  de  derecho  civil  e  historia  general  de 
la  legislacion  espafiola.  2d  ed.  Madrid,  Sucesores  de  Rivadeneyra. 
18S9-1911.     6  V. 

-  Discusi6ii  parlamentaria  del  codigo  civil  ...  en  el  Senado  durante 
.  .  .   1888  a  1889.     Madrid,  Gongora,  1890.     832  p. 


42  GUIDE   TO   THE   LAW   OF   SPAIN 

the  non-Castilian  legislations  {derecho  joral)  and  the  custo- 
mary law  to  the  civil  code  forms  at  times  a  perplexing 
problem. 

FORAi,.  SYSTEMS    {Derecho   Foral)   and  THE  customary  law 

As  regards  the  non-Castilian  or  foral  systems  the  code  is  as 
a  rule  only  supplementary,  though  there  are  a  few  general 
provisions  that  are  obligatory  on  these  territories.  Walton  at 
pages  112  to  1 15  of  the  Introduction  to  his  "Civil  law  in  ,Spain 
and  Spanish-America"  (supra,  p.  36)  summarizes  the  provin- 
cial or  local  laws  not  abrogated  by  the  civil  code,  and  their 
order  of  preference.  In  article  6  of  the  " Ley  de  bases,"  the 
formulation  of  appendices  of  "foral  institutions  which  it  is 
desirable  to  conserve"  was  recommended,  but  nothing  has  been 
done  officially  despite  the  fact  that  its  preparation  was  com- 
manded by  article  7  of  the  same  statute.  That  of  Aragon  is 
already  in  writing  but  awaits  revision,  and  of  course  has  not 
been  promulgated. 

The  foral  law  of  Aragon  may  be  foimd  in  the  extensive  works 
of  Savall '  and  Parral.^  The  former  work  is  old  (1866)  but 
still  enjoys  recognition.  The  shorter  discussions  of  Franco  y 
Lopez,^  to  which  some  additions  have  lately  been  made,  the 
work  of  Blas,^  and  Costa's  "Civil  liberty"  ^  are  valuable  con- 
tributions and  carry  some  authority. 

The  appendix  of  Catalonia,  prepared  by  Trias,  following  the 
deliberations  and  labors  of  the  Acadcniia  de  derecho  of  Barce- 
lona, has  been  presented  to  the  government,  but  likewise  has 
not  been  promulgated.  Trias  "  has  published  some  of  the 
results  of  his  investigation  in  brief  form.     For  researches  into 

'  Savall  y  Dronda,  Pascual  and  Penen  y  Debesa,  Santiago.     Fueros,  obser- 

vancias  y  actos  de  Corte  del  Reino  de  Aragon.     Zaragoza,  Francisco 

Castro  y  Bosque,  1866.     2  v. 
^  Parral  y   Cristobal,   Luis.     Aragon  y  sus  fueros.     Zaragoza,   Mariano 

vSalas,  1907.     2  V. 
'  Franco  y  Lopez,  Luis  and  Guillen  y  Carabantes,  Felipe.     Memoria  sobre 

las  institucioncs  que  deben  continuiu"  subsistentes  del  derecho  civil 

aragones  y  reformas  y  adicioncs  que  en  cllas  cs  conveniente  estab- 

lecer.     Zaragoza,  del  Hospicio,  1886.     i  v. 
*  Bias  y  Melendo,  Andres.     Derecho  civil  aragones.     2d  ed.     Zaragoza, 

Cecilio  Gasca,  1898.     514  p. 
'  Costa,  Joaquin.     La  libertad  civil  y  el  congreso  de  jurisconsultos  ara- 

goneses.     Madrid,  Rev.  de  Icgislacion,  1883.     536  p. 
°  Trias,   Juan   de    Dios.     Conferencias   de   derecho   civil   de   Cataluiia. 

Barcelona,  la  Hormiga  de  Oro,  1899.     191  p. 


FLORAL  SYSTEMS   AND   THE   CUSTOMARY   LAW         43 

the  Catalan  law  the  best  works  are  Dun'ui  y  Bas's  " Memoria"  ' 
and  Broca  and  Araell's  "Institutions  of  the  civil  law  of 
Catalonia."-  Coroleu  and  Pella's^  work,  the  Fiicros  ol  Cata- 
lonia, may  also  be  mentioned. 

The  appendices  for  the  other  foral  territories  have  not  even 
been  redacted,  although  the  elements  for  their  formulation  are 
to  be  found  in  the  works  of  Morales^  for  Navarre;  Pipoll  = 
for  the  Balearic  Islands;  Lecanda"  for  Biscay;  and  I,6pez  de 
Lago  '  for  Galicia.  The  texts  and  full  discussions  of  the  la\ys 
of  Navarre  are  to  be  found  in  the  collection  by  Casteyon «  in 
two  volumes,  and  a  briefer  work  on  the  general  fuero  of 
Navarre  by  Narregui  and  Lopuerta  '  in  1 869.  A  useful  work 
despite  its  age  is  the  dictionary  by  Yanguas'"  of  the  foral  laws 
promulgated  in  Navarre  previous  to  1818.  An  old  but  valu- 
able collection "  of  the  jiicros  and  privileges  of  Biscay  in 
Bilboa  during  the  reign  of  Charles  IV  is  still  referred  to. 

'  Dur4n  y  Bas,  Manuel.  Memoria  accrca  de  las  inslituciones  del  derecho 
civil  de  Cataluna  cscrita  con  iureglo  a  lo  dispuesto  en  el  r.  d.  de  2 
de  febrero  de  1880.     Barcelona,  Casa  de  Caridad,  1883.     406  p. 

2  Broca  Guillernio  and   Amell,   Juan.     Inslituciones  del  derecho  civil 

Catalan  vigente.     Barcelona,  Barcelonesa,  2d  ed.     1886.     2  v. 

3  Coroleu,  Jos6  and  Pella  y  Forgas,  Jose.     Los  fueros  de  Cataluna.     Barce- 

lona, Administracion,  1878.     770  p. 

*  Morales  y  Gomez,  Antonio.     Memoria  que  comprende  los  principios  6 

inslituciones  del  derecho  civil  de  Navarra,  que  deben  quedar  sub- 
sislentes  como  e.xcepcion  del  codigo  general,  )■  los  que  pueden 
desaparecer  vinicndo  a  la  unificacion  decretada  con  arreglo  al  real 
decreto  de  2  dc  febrero  de  1880.     Pamploma,  Provincial,  1884.    295  p. 

*  Pipoll  y  Palou,  Pedro.     Memoria  sobre  las  inslituciones  del  derecho 

civil  de  las  Baleares,  escrila  con  arreglo  a  lo  disquesto  en  cl  real 
decreto  de  2  febrero  de  1880.     Palma,  C;isa  de  Misericordia,  1885. 

55  P- 

«  I^canda  y  Mendiela  Manuel  dc.  Legislacion  foral  de  Espana.  De- 
recho civil  vigente  en  Vizcaya,  precido  de  la  memoria  sobre  las 
inslituciones  civiles  de  aquel  pais.     Madrid,  Nunez,  1888.     272  p. 

'  Lopez  de  Lago,  Rafael.  Memoria  sobre  foros  y  sociedad  gallega, 
escrita  con  arreglo  a  lo  dispuesto  en  el  real  decreto  de  2  de  fcljrcro 
de  1880.     Madrid,  Min.  de  Gracia  y  Justicia,  1885.     53  p. 

*  Casteyon,  Francisco  J.      Legislacion  foral  de  Navarra.     Madrid,  Nunez, 

1888.     2  v. 
»  Narregui,  Pablo  and  Lopuerta,  Segimdo.      Fuero  general  de  Navarra. 

Pamplona,  Provincial,  1869.     192  p. 
'"  Yanguas  y  Miranda,  Jose.     Diccionario  de  los   fueros  del    reino  de 

Navarro  y  de  las  leyes  vigentes  promulgadas  hasla  los  Cortes  de  los 

anos  1817-18.     San  Sebastian,  Ignacio  Ramon  Barojos,  1S28.     547  p. 
"  Fueros,  privilegios,  franquezas  y  libertades  del  M.  N.  M.  L.  senorio  de 

Vizcaya.     Don  Carlos  IV.     Bilbao,  Viuda  de  Antonio  de  Egusquiza, 

(no  date).     383  p. 


44       "  GUIDE   TO   THE   LAW   OF   SPAIN 

The  best  work  of  a  general  nature  on  foral  law  is  that  by 
Barrachina,'  recently  published.  The  author  discusses  its 
relation  with  the  civil  code,  its  effect  on  the  decisions  of  the 
Supreme  Court,  and  on  the  laws  of  registration  and  the  nota- 
rial system,  and  presents  an  account  of  the  different  foral  sys- 
tems, e.  g.,  Catalonia,  Galicia,  Aragon,  Navarre,  Biscay,  and 
the  Balearic  Islands.  The  doctrinal  treatise  of  Falcon,-  cov- 
ering the  civil,  and  the  customary  law  as  well,  is  consulted 
frequently.  The  dictionary  of  Mouton^  deals  especially  with 
the  foral  and  customary  law.  Bond's  *  four-volume  edition 
of  the  civil  code  includes  concordances  with  the  foral  law  in 
force  in  the  various  provinces.  It  is  not  considered  authori- 
tative though  frequently  used.  The  collection  of  legislation 
by  Maura  ^  covering  Majorca,  Biscay  and  Galicia  is  authori- 
tative. Another  older  collection  of  value  covering  Castile, 
Leon,  Corona  and  Navarre  by  Munoz  "  may  be  mentioned. 

The  code  denies  all  value  to  customs  as  opposed  to  statutes, 
but  it  admits  the  suppletory  character  of  local,  though  not  of 
general,  customs  in  cases  where  there  are  no  legal  precedents 
or  statutes,  because  dealing  with  matters  unforeseen  by  the 
legislator.  It  is  a  well-known  fact,  however,  that  customs  con- 
trary to  the  statute-book,  alike  in  questions  of  civil,  adminis- 
trative, political  or  other  law,  continually  arise,  frequently  pre- 
vail in  practice,  and  often  have  general  assent.  This  force  of 
the  customary  law  is  discussed  in  chapter  4,  numbers  1-8  of 
Altamira's  Ciiestiones  preliminares  {supra,  p.  37). 

'  Barrachina  y  Pastor,  Federico.     Dcrecho  foral  espanol.     Castell6n,  J. 

Armengotthejos,  1911-1912.     3  v. 
^  Falcon,    Modesto.     Exposicion   doctrinal   del   derecho   civil   espanol, 

comun  y  foral.     6th  ed.     Barcelona,  La  Publicidad,  Tobeila,  Costa 

y  Pifiol,  1902.     4  V. 
'  Mouton  Ocampo,  Luis.     Diccionario  del  dcrecho  civil  foral,  compilado 

y  consuetudinario.     Madrid,  P.  Apalategui,  1904.     4  v. 
*  Bonel  y  Sanchez,  Leon.     Codigo  civil  espanol,  concordado  y  domentado 

con  el  derecho  foral  vigente  en  Cataluna,  Aragon,  Navarra,  y  demas 

territorias  aforadas.     Con  la  jurispnidencia,  etc.     Barcelona,  Lopez 

Robert,  1890.     4  v. 
°  Maura  y  Montaner,  Antonio.     Legislacion  foral  de  Espana.     Mallorca, 

Vizcaya  y  Galicia.     Madrid,  Nunez,  1888.     3  v.  in  i. 
'Munoz  y  Romero,  TomAs.     Coleccion  de  fueros  municipales  y  cartas 

pucblas — Castilla,  Leon,  Corona  y  Navarra.     Madrid,  J.  M.  Alonso, 

1847.     3  V. 


CONTENTS  45 

It  must  be  noted  that  the  actual  civil  legislation,  which 
includes  statutes  and  the  foral  legislations,  does  not  comprise 
all  the  positive  civil  law  of  Spain,  but  that  local  and  general 
customs  molded  to  new  conditions  play  an  important  part. 
Of  course,  it  often  happens  that  the  customary  law  has  been 
reproduced  in  the  written  Icgiskilion.  On  customary  law  the 
investigations  of  Costa  have  probably  been  the  most  thorough. 
In  1902  he  published  his  "derechoconsuetudinario"  ^  of  Spain, 
with  the  assistance  of  such  eminent  jurists  and  authors  as 
M^ntez,  Altamira,  Lopez,  Moran  and  others.  Mout6n's  = 
brief  treatise  on  customary  law  discusses  the  law  as  it  pre- 
vails in  other  continental  countries  as  well  as  in  Spain. 

In  Catalonia  jurists  are  at  present  giving  much  attention  to 
the  customary  law  and  to  the  question  of  how  much  weight  it 
should  be  given  in  practice.  A  leading  work  on  this  topic  is 
that  of  Forroella  ^  but  unfortunately  it  was  written  in  the 
Catalan  dialect.  Probably  in  all  of  the  Spanish  legal  works 
customary  laws  are  at  times  mentioned  and  referred  to.  Of 
especial  interest  is  the  article.  El  mctodo  positi-vo  of  Altamira, 
appearing  in  the  1892  volume  of  the  journal  La  nueva  ciencia 
juridica. 

The  Supreme  Court  at  Madrid  passes  in  the  last  instance 
upon  appeals  from  the  whole  of  Spain,  thus  causing  the  influ- 
ence of  Castilian  law  to  be  felt  throughout  the  Peninsula.  The 
doctrines  of  these  decisions  are  having  some  harmonizing 
effect  in  the  conflict  of  the  code  with  the  foral  law. 

CONTENTS 

The  Spanish  civil  code  is  divided  into  four  books,  together 
with  a  short  preliminary  title,  which  sets  forth  the  jurisdic- 

'  Costa,  Joaquin.  Derecho  consuetudinario  y  economia  popular  de  Es- 
pafia.  Tomo  I  (Alto  Aragon,  2  d.  ed.  aumentada)  por  J.  Costa,  Tomo 
II  (Zamora,  Vizcaya,  Asturias,  Ciudad  Real,  Alicante,  Leon,  Jaen, 
Burgos,  etc.)  por  J.  Costa,  S.  Mentez,  M.  Unamuno,  M.  Pedregal, 
J.  M.  Piemas  Hurtado,  P.  Soriano,  R.  Altamira,  J.  A.  Lopez  de  la 
Osa,  J.  Serrano,  V.  Santamaria,  E.  Lopez  Moran  y  G.  Gonzdlez  de 
Linares.     Barcelona,  Manuel  Soler,  1902.     2  v. 

^  Mouton  y  Ocampo,  Luis.  Derecho  consuetudinario  espanol  y  eiyopeo. 
Madrid, ''La  Editora,"  1911.     447  P- 

3  Forroella  y  Bastons,  Juan  Bta.  Lj  droit  civil  gironi.  Mataro,  Felicia 
Horta,  1899.     124  p. 


46  GUIDE   TO  THE   LAW   OF   SPAIN 

tion  and  effect  of  the  laws,  and  certain  general  rules  for  their 
application,  with  a  few  rules  on  the  conflict  of  laws. 

Book  one  deals  with  the  law  of  persons  and  is  divided  into 
twelve  titles  or  sections.  Title  I  defines  who  are  Spaniards 
and  who  are  foreigners,  and  gives  the  methods  of  naturaliza- 
tion. General  laws  for  foreign  and  domestic  corporations  and 
associations  are  included.  Title  II  deals  with  the  origin  and 
extinction  of  civil  personality,  and  is  itself  divided  into  two 
chapters,  one  dealing  with  natural,  and  the  other  with 
juridical  persons,  or  corporations  and  associations.  Title  III 
deals  with  domicil,  and  title  IV  with  marriage,  e.  g.  the  forms 
of  contracting,  rights  and  obligations,  and  divorces,  title  V 
covers  paternity  and  filiation,  title  VI  defines  the  support 
required  for  relations,  and  title  VII  deals  with  the  paternal 
power  and  its  effect  on  the  person  and  property  of  the  children, 
and  includes  adoption.  In  title  VIII  the  results  and  effects 
of  absence  are  shown.  Title  IX  covers  guardianship  and 
titles  X,  XI,  and  XII  deal  respectively  with  the  family  coun- 
cil, emancipation  and  majority,  and  the  registry  of  civil  status. 
It  may  be  stated  that  the  family  council  is  one  of  the  remark- 
able adoptions  of  foreign  institutions  by  the  code  which  have 
often  not  unjustly  incurred  the  criticism  of  the  profession. 

Book  two  takes  up  the  laws  of  property,  ownership  and 
its  modifications,  and  is  divided  into  eight  titles  or  sections. 
Title  I  classifies  property  into  real  and  personal,  and  divides 
it  into  things  pertaining  to  the  public  domain  and  private 
ownership.  Title  II  deals  with  ownership,  rights  of  accession 
and  rules  for  boundary  lines.  Title  III  treats  of  the  obliga- 
tions and  rights  of  joint  owners.  In  title  IV  some  special 
forms  of  property  are  dealt  with,  such  as  waters,  use 
of  private  and  public  waters,  mineral  ores,  and  intellectual 
property.  In  title  V  the  laws  of  possession,  its  acquisition 
and  effect  are  covered.  Usufruct,  use  and  habitation,  ease- 
ments and  servitudes,  and  registration  of  property  are  covered 
in  titles  VI,  VII,  and  VIII,  successively. 

Book  three,  which  deals  with  the  different  ways  of  acquiring 
ownership,  is  divided  into  three  titles  or  sections.  They  treat 
of  adverse  possession  and  acquisition  of  property  which  has 
had  no  former  owner,  donations  or  gifts,  and  successions. 
Successions  are  subdivided  into  testamentary  and  intestate. 


GENERAL   LITERATURE  47 

Book  four  is  the  longest  and  deals  with  obligations  and 
contracts,  divided  into  i8  subheads  or  titles.  Title  I,  on 
"obligations",  discusses  the  general  nature,  extinction 
and  the  evidence  admissible  in  the  proui  of  obligations. 
Title  II  is  headed  "contracts",  and  all  the  other  sections  are 
really  parts  of  this.  The  essentials  of  a  contract,  contracts 
relating  to  property  on  account  of  marriage,  parapherna, 
conjugal  community,  contracts  of  purchase  and  sale,  barter 
or  exchange,  contracts  of  lease,  rents,  partnership,  agency, 
loans,  deposit,  aleatory  contracts,  compromises,  security, 
contracts  of  pledge,  mortgage,  quasi-contracts,  concurrence 
and  preference  of  credits,  (civil  law  institutions)  and  pre- 
scription (both  of  ownership  and  of  actions)  are  all  dealt  with 
in  the  order  mentioned. 

The  code  ends  with  a  section  of  provisions  for  its  applica- 
tions to  actions  and  rights  acquired  previously  to  its  adoption 
and  also  provides  for  a  revision  of  the  code  every  ten  years, 
a  provision  which  has  not  been  carried  out. 

GENERAL  LITER.'VTURE 

There  have  been  two  translations  of  the  civil  code  into  Eng- 
lish and  one  into  French.  By  royal  decree,  July  31,  1889,  the 
code  was  extended  to  the  islands  of  Cuba,  Porto  Rico,  and  the 
Philippines,  to  go  into  effect  twenty  days  thereafter.  The  ad- 
ministration of  these  islands  by  the  United  States  following  the 
close  of  the  Spanish- American  War  in  1 898  required  the  trans- 
lation of  this  code  into  English.  In  1899  a  translation  without 
annotations  or  notes  was  prepared  by  Walton  and  De  Leon.' 
Walton  republished  this  translation  in  1900  in  his  "Civil  law 
of  vSpain  and  Spanish  America,"  {supra,  p.  36)  with  citations  to 
the  laws  on  which  the  different  chapters  and  subjects  are  based, 
and  to  some  Spanish-American  civil  codes  under  the  corre- 
sponding articles.  The  War  Department  of  the  United  States 
issued  a  translation  ^  in  1 899  of  the  Spanish  code  in  force  in 
the  new  American  possessions.     This  translation  may  also  be 

'Walton,  Clifford  S.,  and  Ponce  de  IvCon,  Nestor.  The  Spanish  civil 
code,  translated.     Havana,  La  propaganda  literaria,  1899.     368  p. 

^  Division  of  Customs  and  Insular  Affairs.  War  Department.  Trans- 
lation of  the  civil  code  in  force  in  Cuba,  Porto  Rico  and  the  Philip- 
pines, with  alphabetical  index.  Washington,  Government  Printing 
Office,  1899.     322  p. 


48  GUIDE  TO  THE   LAW   OF  SPAIN 

found  in  the  last  volume  of  the  "Laws,  ordinances,  etc., 
effective  in  Porto  Rico  May  i,  1900."  '  This  work  includes 
translations  of  the  civil,  penal  and  commercial  codes,  the  codes 
of  criminal  and  civil  procedure,  the  mortgage  law,  public  ser- 
vice law,  etc.  These  are  all  useful  to  the  student  of  Spanish 
law,  in  view  of  their  practical  identity  with  the  laws  of  Spain. 
The  translations  are  too  literal  to  be  considered  good. 
A  French  translation  ^  of  the  civil  code  has  been  made  by  A. 
Leve,  a  second  edition  of  which  appeared  in  1904.  There  is 
a  general  discussion  of  the  code  in  the  introduction,  and  the 
different  sections  are  annotated  with  reference  to  correspond- 
ing sections  in  the  French  and  other  foreign  codes. 

Spanish  editions  of  the  civil  code  vary  in  size  and  manner  of 
treatment.  The  editorial  staff  of  the  Revista  de  los  tribunales 
publishes  new  editions  of  the  code  from  time  to  time  in  handy 
and  convenient  form.  Their  latest  edition  ^  appeared  in  1912. 
Garcia  Moreno^  recently  (1913)  published  an  edition  of  the 
code  as  in  force  in  Spain  and  Cuba.  The  amendments  and 
additions  with  judicial  decisions  in  both  Spain  and  Cuba 
up  to  1 91 3  are  inserted  as  annotations.  Attention  may 
also  be  called  to  the  "reference  manual"  of  Spanish  law 
by  Medina  and  Maraiion,''  which  is  used  currently  by  the 
profession.  This  small  volume  contains  the  civil  and  com- 
mercial codes,  the  mortgage  law,  the  law  of  civil  pro- 
cedure, the  Constitution  of  1876  and  the  principal  legislation 
through  1 91 1.  Ma.rtinez  AlcuhiWa,"  whose  Dkcionario  (supra, 
p.  16)  is  the  standard  encyclopedia  of  Spanish  law  has  re- 

'  Division  of  Customs  and  Insular  Affairs.  War  Department.  Laws, 
ordinances,  decrees,  and  military  orders  having  the  force  of  law, 
effective  in  Porto  Rico,  May  i,  igoo.  Washington,  Government 
Printing  Office,  igog.     4  v. 

'  Lev6,  A.  Code  civil  espagnol,  traduit  et  annote.  2d  ed.  Paris,  A. 
Pedone,  igo4.'    354  p. 

^  Codigo  civil  espaiiol,  cuidadosamente  revisado.  Madrid,  Gongora, 
igi2.     404  p. 

*  Garcia  Moreno,  A.     Codigo  civil  vigente  en  Espaiia  y  Cuba,  con  varias 

leyes  y  otras  disposiciones  complementarias  ...  3d  ed.     Madrid, 
Artistica  espanola,  igi4.     821  p. 
^  Medina,  Leon  y  Maraiion,  Manuel.     Leyes  civiles  de  Espaiia  conformas 
4  los  textos  oficiales.     Novisima  ed.     Madrid,  Los  Hijos  de  Tello, 
1911.     1422  p. 

*  Martinez  Alcubilla,  J.     Codigo  civil.     Madrid,  Administracion,  igi3. 

1171  p. 


GENERAL  LITERATURE  49 

cently  (1913)  published  a  most  complete  edition  of  the  code 
with  numerous  citations  to  his  large  work.  It  is  in  fact  a 
digest  of  references  to  civil  law  included  in  his  encyclopedia, 
which  has  grown  cumbersome  by  many  additional  supple- 
ments. 

The  provision  in  the  code  for  complete  revisions  every  10 
years  has  resulted  in  but  slight  changes  and  those  usually  in 
minor  details.  There  have  been  numerous  legislative  enact- 
ments and  many  court  decisions  relating  to  the  individual 
sections  of  the  code.  In  these  matters,  Calvo  '  has  furnished 
an  exceedingly  useful  aid  to  the  study  of  the  code.  His  work, 
which  appeared  in  191 2,  is  an  index  of  all  the  relevant  legis- 
lation and  court  decisions  chronologically  arranged  under 
each  section  of  the  code.  References  are  made  to  the  Gaceta 
{supra,  p.  11)  and  Martinez  Alcubilla's  monumental  ency- 
clopedia {supra,  p.  16),  where  the  texts  of  statutes  and  de- 
cisions may  be  found. 

There  are  two  standard  commentaries  {comentarios}  on  the 
civil  code,  possibly  of  equal  value.  Manresa,^  a  justice  of 
the  Supreme  Court  and  a  member  of  the  Code  Commission, 
has  published  a  12  volume  edition  with  the  collaboration  of 
various  lawyers.  Scaevola's  "Civil  code"  ^  is  an  even  more 
extensive  commentary.  It  embraces  24  volumes  and  2 
supplements,  the  latter  dealing  with  certain  special  topics. 
The  period  of  publication  covered  the  years  1 902-1 909,  and 
there  is  now  in  preparation  a  new  edition,  of  which  nine 
volumes  have  appeared.  A  part  of  book  IV  of  the  code  has 
never  been  covered  by  the  original  work. 

A  scientific  and  thorough  criticism  of  the  code  is  the  "La 
revision"  by  Comas,*  who  is  a  professor  and  former  dean  of  the 
faculty  of  law  in  the  University  of  Madrid,  as  well  as  a  member 

'  Calvo  y   Camina,   Pedro.     Legislacion  y  jurisprudencia  relativas  al 

codigo  civil.     Madrid,  Hijos  de  Reus,  1912.     568  p. 
^  Manresa  y  Navarro,  Jose  Maria.     0)mentarios  al  codigo  civil  espaiiol. 

Madrid,  Rev.  de  legislacion,  1903-1907.     12  v. 
'  Scaevola,  Q.  Mucius.     Codigo  civil  concordado  y  comentado  extensa- 

mente  con  arreglo  d  la  edicion  oficial.     Madrid,  Obras  de  Mucius 

Scaevola,  [etc.]  1902-1909.     24  vols,  and  2  suppl. 
*  Comas,    Augusto.     La  revision   del   c6digo    civil   espanol.     Madrid, 

Hu^rfanos,  1895-1902.     6  v. 

77231° — 15 4 


50  GUIDE  TO   THE   LAW   OF   SPAIN 

of  the  General  Code  Commission.  He  discusses  the  necessity 
of  a  reformation  of  the  code  and  takes  up  each  section  indi- 
vidually. A  " proyecto  de  reforma"^  or  a  proposed  model  is 
submitted  by  the  author. 

A  few  treatises  in  English  on  Spanish  civil  law  have  been 
published,  both  before  and  after  the  adoption  of  the  code  of 
1889.  An  Englishman,  Lewis  V.  C.  Johnston,^  in  1825,  made 
a  translation,  with  copious  notes,  of  the  "Institutes  of  the 
civil  law  of  Spain"  (6th  ed.,  1805)  by  Asso  and  Manuel.  The 
translation  was  prepared  for  the  benefit  of  English  lawyers, 
upon  the  acquisition  of  the  island  of  Trinidad  by  England. 
The  work  is  divided  into  three  books  which  treat  respectively  of 
persons,  things  (including  crimes  and  punishments)  and  actions 
(civil  and  criminal).  It  contains  the  substance  of  the  statute 
and  common  law  of  Spain  at  that  date.  In  1 85 1  Schmidt  pub- 
lished in  New  Orleans  a  treatise  on  the  civil  law  of  vSpain  and 
Mexico  {supra,  p.  37).  The  work  is  arranged  on  the  principles 
of  the  Spanish  codes  in  force  in  1 85 1 ,  with  notes  and  references. 
Walton's  "Civil  law  in  Spain  and  Spanish  America  "  has  already 
been  mentioned  (supra,  p.  36).  This  work  is  useful  to  English- 
speaking  people  because  of  the  lack  of  English  works  on 
Spanish  law,  but  the  author  is  not  always  accurate.  Its 
contents  include  a  translation  of  the  civil  code  and  its  amend- 
ments, short  sketches  of  the  codes  of  civil  and  criminal  pro- 
cedure, an  outline  of  the  law  of  mortgages  and  also  a  trans- 
lation of  the  constitutions  of  Cuba  and  Mexico  in  force  in  1 900. 

A  two-volume  elementary  treatise  on  Spanish  civil  law, 
published  in  French  by  Ernest  Lehr,^  warrants  mention. 
The  first  volume  appeared  in  1880,  before  the  adoption  of  the 
Code  of  1889,  and  the  second  volume  in  1890. 

Spanish  treatises  on  the  civil  law  vary  greatly  in  size 
and  importance.  The  leading  work  is  the  Estudios  of 
Sanchez   Roman,*  a  professor  in   the   University  of  Madrid 

'  Comas,  Augusto.  Proyecto  tie  reforma  del  codigo  civil  espanol.  Madrid, 
Huerfanos,  1895,  1900.     2  v. 

2  Johnston.  Lewis  F.  C.  Institutes  of  the  civil  law  of  Spain  by  Ignatius 
Jordan  de  Asso  y  Del  Rio  and  Miguel  de  Manuel  y  Rodriguez  (6th  cd., 
Madrid,  1805).  Translated  from  the  Spanish  with  notes,  an  appen- 
dix, and  index.     London,  A.  Strahan,  1825.     535  p. 

'  Lchr,  Hrnest.  Elements  de  droit  civil  espagnol.  Paris,  L.  Larose  et 
Forcel,  1880,  1890.     2  v. 

*  Supra,  p.  41. 


GENERAI^  LITERATURE  5 1 

and  a  member  of  llie  Code  Coiiimission.  The  first  volume  con- 
tains a  valuable  general  history  of  Spanish  legislation.  In 
separate  volumes,  the  common  and  forallaws,  the  law  of  proj)- 
erty,  contracts,  family  relations  and  succession  are  taken  up. 
The  "notes"  (apuntes)  of  Prof.  Clemente  de  Diego, ^  also  of 
the  University  of  Madrid,  and  director  of  the  periodical 
Revisla  de  dcrccho  privado,  are  to  some  extent  superseding  as 
a  treatise  the  work  of  Sanchez  Roman  and  enjoy  considerable 
authority.  Unfortunately  its  value  was  lessened  by  the  form 
of  its  appearance,  but  in  this  year  (1914)  a  new  edition  in  read- 
able type  is  in  course  of  publication.  Buron^  has  published  a 
work  on  the  civil  law  combined  with  a  project  of  reformation 
of  the  code.  Prof.  Calabuig,^  of  the  University  of  Valencia, 
in  1912,  published  the  first  volume  of  his  "Studies"  on  the 
civil  law  of  Spain.  The  part  already  in  print  is  complete  in 
itself,  being  a  general  discussion  of  the  conception,  the  theory, 
and  the  essential  elements  of  civil  law.  The  parte  especial, 
or  part  dealing  in  detail  with  the  institutions  of  civil  law,  is 
now  in  preparation.  Valverde  ■*  is  at  present  (1914)  pub- 
lishing a  treatise  on  the  civil  law,  three  volumes  of  which 
appeared  in  191 3. 

There  are  two  important  annotated  editions  of  the  decisions 
on  the  civil  code  which  may  be  mentioned.  Mucins  Scaevola,'' 
who  produced  the  voluminous  commentary  on  the  civil 
code,  edited  a  set  of  the  reports  from  1889  to  1901  in 
seven  volumes,  arranged  in  accordance  with  the  civil  code. 
Annual  supplements  extend  the  work  to  igo8.  Volumes  bring- 
ing the  decision  down  to  date  are  in  course  of  publication.  A 
convenient  edition  of  the  decisions  on  the  civil  code,  followed 
by  four  indices  for  easy  consultation,  has  been  compiled  by  a 

'  Clemente  de  Diego,  Felipe.     Apuntes  de  derecho  civil.     Madrid,  \'. 

Suarez,  1914.     8  v. 
^  Buron  y  Garcia,  Gregorio.     Derecho  civil  espaiiol  segiin  los  jirincipios, 

los  codigos  y  leyes  precedenles  y  la  reforma  del  codigo  civil.     Valla- 

dolid,  Audres  Martin,  189S-1900.     3  v. 
^  Calabiiig  y  Carra,  Vicente.     Estudios  sobre  el  derecho  civil  cspanol. 

Parte  general.     \'alencia,  Hijos  de  F.  Vines  Mora,  1912.     483  p. 
*  Valverde  y  Valverde,   Calixto.      Tratado  de  derecho  civil   espaiiol. 

Madrid,  Marcias  Picanea,  1913.    3  v.  to  date. 
'Scaevola,  Q.  Mucins.     Jurisprudeneia  del  codigo  civil.     Sentencias  y 

repuestas.     Expuesta   y   conientada.     Madrid,    Imprint   del    autor 

(now  published  by  Ricardo  Rojas)  1901-1911.     7  v.  and  suppl. 


52  GUIDE  TO  THE   IvAW   OF   SPAIN 

jurist  who  signs  his  name  V.   A.   M.'     These   reports  com- 
mence in  1889  and  extend  to  the  present  day. 

INDIVIDUAL  PARTS  OF  THB  CODE  AND  RELATED  SUBJECTS 

The  various  divisions  of  the  code  have  been  the  subject  of 
individual  treatment  in  a  number  of  important  works,  to 
which  attention  may  be  called.  Several  of  the  larger  general 
works  previously  cited,  especially  the  treatise  of  Sanchez 
Romin  {supra,  p.  41),  include  full  treatments  of  the  indi- 
vidual parts  of  the  code. 


The  code  in  titles  one  and  two  of  book  I  covers  explicitly 
citizenship  and  naturalization  and  divides  persons  into  two 
classes,  natural  and  juridical.  The  formation  and  governing 
laws  of  corporations  and  companies  are  discussed  under 
mercantile  law  {infra,  p.  72). 

The  forms  and  requirements  for  the  contraction  and  cele- 
bration of  marriage  were  formerly  left  to  the  canon  or  eccle- 
siastical law,  but  under  the  code  of  1889  a  civil  marriage  is 
provided  for,  with  the  exception  (art.  42)  that  all  who  "profess 
the  catholic  religion  must  celebrate  the  canonical  form." 
A  royal  decree  was  issued  March  19,  1906,  in  regard  to  the 
secret  civil  marriage.  Emile  Stocquart,  who  has  made  a 
study  of  the  Spanish  marriage  laws,  published  several  inter- 
esting articles  on  the  subject.  In  1904  he  published  a  descrip- 
tion in  French  of  the  law  of  marriage  under  the  early  Spanish 
codes,  in  volume  36  (1904)  of  the  Revue  dc  droit  international , 
pages  585-603.  Some  years  previously  he  discussed  in  English 
the  Spanish  marriage  laws  and  their  extra-territorial  effect,  in 
volume  25  (1891)  of  the  American  Law  Review,  pages  82-95. 
He  compared  the  vSpanish  and  French  laws  in  the  third  volume 
( 1 910)  of  the  Annual  Bulletin  of  the  Comparative  Law  Bureau, 
pages  25-38.  A  practical  treatise  or  manual  on  marriage  by 
Lastres,^  in  his  "popular  jurisprudence"  series,  appeared  in  a 

'  V.  A.  M.  Jurisprudencia  referente  al  codigo  civil  glosada,  concordada, 
etc.  ...  Madrid,  Ricardo  Rojas  (now  published  by  Leopoldo 
Martinez),  1894-1912.     19  v. 

^  Lastrcs,  Francisco.  El  matrimonio.  3d  ed.  adjustada  al  codigo  civil. 
Madrid,  V.  Suarez,  1889.     214  p. 


INDIVIDUAL  PARTS  OP  CODE  AND  RELATED  SUBJECTS         53 

third  edition  iininediately  following  the  promulgation  of  the 
code  of  1889.  Cardenas'  in  volume  II,  pages  1-117,  of  his 
"juridical  studies"  presents  two  interesting  historical  mono- 
graphs on  the  effects  of  marriage  on  property.  An  interesting 
article  on  the  Spanish  law  concerning  breach  of  promise  to 
marry  as  compared  with  American  law  appeared  in  volume  43 
(1909)  of  the  American  Law  Review,  pages  759-769.  It  is  in 
fact  an  opinion  by  Judge  Lobingier  in  a  case  in  the  Philippine 
Islands. 

All  positive  law  relating  to  women  in  Spain,  with  annota- 
tions and  comments,  was  compiled  by  Diez  Enriguez^  in  1903. 
Books  on  the  legal  condition  of  woman  by  Ferreiro  Lago,'  and 
the  "  married  woman  and  the  civil  code"  by  Villar  and  Mar- 
tinez Acacio*  may  be  mentioned. 

In  his  "popular  jurisprudence"  series,  Lastres  has  issued 
treatises  on  filiation,  family  relations,''  and  guardianship, ° 
which  have  undergone  new  revisions  in  accord  with  the  civil 
code.  The  legal  condition  and  social  problem  of  illegitimate 
children  appears  to  be  a  more  important  question  in  Spain 
than  in  America,  due  to  the  position  the  government  has 
taken  in  supporting  bastards.  A  modern  discussion  of  this 
question,  following  the  legislation  to  igo6,  was  published  by 
Angulo.'  Infants'  contracts,  or  their  capacity  to  assume  legal 
obligations,  is  covered  in  a  work  by  Ramos.' 

'  Cardenas,   Francisco.     Estudios  juridicos.     Madrid,   P.   Nuiiez,   1884. 

2  V. 
'  Di6z  Enriguez,  Dronisio.     El  derecho  positive  de  la  mujcr.     Madrid, 

Gongora,  1903.     380  p. 
'  Ferreiro  Lago,  R.     Condici6n  juridica  de  la  mujer.     Estudios  filos6fico, 

historico  y  del  codigo  civil.     Valladolid,  Santaren  Madrazo,  1902. 

108  p. 

*  Villar  y  Peralta,  Luis  and  Martinez  Acacio,  Jose.     La  mujer  casada  y  el 

codigo  civil.     Madrid,  Alonso,  1894.     135  p. 
°  Lastres,  Francisco.     Filiacion.     Patria  potestad.     Alimentos.     2d  ed., 

adjustada  al  codigo  civil.     Madrid,  \'.  Suarez,  i8go.     200  p. 
°  Lastres,  Francisco.     Tutcla  y  consejo  de  familia.     2d  ed.,  adjustada  al 

codigo  civil.     Madrid,  V.  Suarez,  1890.     201  p. 
'  Angulo  y  Laguna,  Diego.     Estudios  sobre  la  condici6n  juridica  de  los 

hijos  ilejtiimos  segun  los  principios  y  el  c6digo  civil  vigente.     2d  ed. 

Madrid,  Hijos  de  Reus,  1906.     212  p. 

*  Ramos,  Rafael.     Capacidad  de  los  menores  para  contratar  y  obligarse 

con  arreglo  a  la  legislaci6n  vigente.     3d  ed.     Madrid,  Hijos  de  Reus, 
1907.     500  p. 


54  GUIDE   TO  THE   LAW   OF   SPAIN 

A  leading  work  on  guardianship  is  the  commentary  by 
Penichet.'  The  family  council,  or  the  consejo  dc  familia,  is 
peculiar  to  civil  law  countries;  there  is  no  exactly  similar 
institution  in  the  United  States.  It  is  composed  of  relations 
appointed  by  law  (unless  provided  for  by  will)  who,  among 
other  guardianship  duties,  perform  some  that  fall  upon  our 
probate  courts.  A  treatise  on  this  subject  by  Arce  ^  was 
prepared  immediately  after  the  code  was  adopted.  A  more 
modern  (1905)  work  is  that  of  Ribera.^ 

As  has  been  stated,  the  large  general  works  contain  full, 
and  possibly  the  best,  accounts  of  the  individual  parts  of  the 
code.  This  is  true  of  the  registry  of  civil  status.  The  laws 
concerning  registration  of  births,  deaths,  marriages,  etc.,  are 
more  rigidly  enforced  in  the  countries  of  Europe  than  the}' 
have  been  vip  to  this  time  in  the  United  States.  The  legisla- 
tion governing  the  civil  register  was  compiled  in  1907  by  the 
editorial  house  of  G6ngora.*  Abella's  ^  manual  may  also  be 
mentioned.  The  older  treatise  of  Femdndez  Giner  °  is  still 
of  value. 

PROPERTY 

The  law  of  property  in  a  civil  law  country  such  as  Spain  has 
many  difficulties  for  the  lawyer  trained  in  the  common  law. 
In  the  years  1879  to  1883,  Azcarate'  published  a  lengthy 
history  of  the  property  law  of  Europe  and  its  actual  status. 
Laws  of  mortmain  and  entailment  of  estates  in  Spain  are  dis- 
cussed in  the  brief  but  valuable  work  of  the  present  prime 

'  Pcnichet  y  Lugo,  Francisco.  Comentarios  k  la  tiitela.  Madrid, 
Hijos  de  Reus,  1899.     424  p. 

^  Arce  y  Rodriguez,  Angel  de.  El  consejo  de  familia,  la  tutela,  y  la 
protutela.     Madrid,  F6,  1890.     232  p. 

'  Ribera  Caiiizares,  M.  Prontuario  del  consejo  de  familia,  de  la  pro- 
tutela y  de  la  tutela.     Madrid,  V.  Suarez,  1905.     2  v. 

■•  Legislacion  de  registro  civil  desde  su  creacion  hasta  el  dia.  Madrid. 
Gongora,  1907.     i  v. 

^  Abella,  Fermin.  Manual  del  registro  civil.  6th  ed.  Madrid,  Admin- 
istracion  de  "El  Consultor,"  1903.     nop. 

*  Fernandez  Giner,  Jose.  Tratado  complcto  del  registro  civil.  Madrid, 
Aurelio  J.  Alaria,  1879.     128  p. 

'  Azcarate,  Gumersindo  de.  Ensayo  sobre  la  historia  del  derecho  de 
propiedad  y  su  estado  actual  en  Eimapa.  Madrid,  Rev.  de  legis- 
lacion, 1879-1883.     3  V. 


INDIVIDUAL  PARTS  OF  CODE  AND  RELATED  SUBJECTS         55 

minister,  Maura.'  Antequera  =  has  published  a  treatise  upon 
the  disentaihnent  of  ecclesiastical  lands.  The  latest  manual 
of  ci\'il  and  ecclesiastical  mortmain  laws  by  Aparici  ^  appeared 
nearly  fifty  years  ago.     (See  also  p.  119,  infra.) 

LITERARY    AND   INDUSTRIAL   PROPERTY 

The  subjects  of  literary  and  industrial  properly  (propiedad 
Hkraria  y  indmirial)   received  little    treatment    in  the  civil 
code,   but  are  dealt  with   fully   in   separate   statutes.     The 
earliest  recognition  of  the  rights  of  authors  was  sanctioned  by 
the  decree  of  Charles  III  in  1764.     The  recognition  of  other 
kinds  of  intellectual  property,  such  as  paintings,  musical  and 
dramatic  works,  maps,  etc.,  subsequently  took  place  gradually. 
In  the  third  volume  of  the  Law  Magazine  and  Review  (1877- 
1878),  fourth  series,  pages  427-459.  there  was  published  an 
article  dealing  with  copyright  reform  in  Belgium,  vSpain  and 
England.     The    draft    law  as    presented    to    the    Corics    m 
1877    is    translated    into    English    at    pages   442-453-     This 
law  was  adopted  Jan.  10,  1879  and  was  followed  in  1880  by 
a  reglamento  or  regulation  for  carrying  it  into  effect.     Smce 
that  date  there  have  been  but  few  additions  to  or  changes 
in  the  statute.^     A  good  manual  of  the  laws  governing  literary 
property,  by  Soto  y  Hernandez,"  contains  all  the  legislation 
and  relevant  decisions  to  the  date  of  publication,  including 
the  Berne  convention  of  1886.     In  the  appendix  accounts  are 
given  of  the  vSociety  of  Spanish  authors  and  the  Association 
of  the  Press.     Another  manual  of  convenient  size  was  pub- 
Ushed  by  the  law  librarian  of  the  University  of  Madrid,  Cas- 

1  Maura  y  Montaner,  Antonio.     Propiedad  de  personas  juridicas.    Amor- 

tizacion,  vinculacion.     Madrid,  M.  H.  Hernandez,  1897.     46  P- 

2  Antequera    Jose  M.     La  desamortizacion  eclesiastica  considerada  en 

sus  diferentes  aspectos  y  relaciones.     Madrid,  Perez  Dubrull,  1885. 

'  X^^ily  Soriano,  Ricardo.  Manual  novisima  de  la  desamortizaci6n 
civil  y  eclcciastica.     Madrid,  Tejado,  1868.     525  P- 

'  Spain  has  been  liberal  in  granting  copyright  protection  to  foreigners. 
In  view  of  the  protection  granted  to  American  citizens,  the  benefits 
of  the  United  States  copyright  acts  of  1891  and  1909  were  extended 
to  Spanish  subjects  by  presidential  proclamation  of  1895  (renewed 
in  1902)  and  1910.  .  ,    . 

■-  Soto  y  Hernandez,  Antonio.  Manual  de  la  propiedad  literana,  artistica 
ydramitica  .  .  .  Madrid,  G6ngora,  1902.     240  p. 


56  GUIDE   TO   THE    LAW   OF   SPAIN 

tillo.'  A  bibliography  of  foreign  and  Spanish  works  on  the 
subject  is  included.  A  work  by  a  South  American,  Rios,^ 
of  special  interest  to  the  Latin-American  republics,  discusses 
the  bases  for  a  treaty  between  American  republics  and  Spain. 
The  distinguished  jurist  Gonzalez  Hontoria '  in  1 899  made  a 
collection  of  the  treaties  in  regard  to  intellectual  property 
between  Spain  and  Spanish-American  countries. 

Estasen  ^  has  published  a  complete  work  on  the  industrial 
law  of  Spain  in  which  industrial  property  is  fully  covered. 
The  treatise  also  discusses  the  labor  laws  and  until  1902  was 
probably  the  most  useful  single  work  on  the  subject  of  indus- 
trial law.  Since  the  enactment  of  the  patent  and  trade-mark 
law  of  1902,  however,  it  has  lost  some  of  its  usefulness. 

The  law  concerning  the  protection  of  industrial  property 
is  found  in  the  statute  of  1902,  la  ley  de  propiedad  imiustrial 
de  16  de  Mayo  de  i<)02  y  sii  regla^nento  de  12  de  Junio  de  J90J 
(with  the  royal  order  of  July  26,  1905,  explaining  article  109 
of  the  law).  There  were  various  other  statutes  enacted  prior 
to  this  act  of  1902  which  was  the  consumation  of  a  complete 
"code"  on  the  subject,  and  is  now  in  force.  It  includes  the 
laws  of  patents,  useful  models  and  designs,  trademarks, 
trade  names,  unfair  competition,  and  the  protection  of  indus- 
trial prizes  or  honors  legally  awarded.  The  act  in  complete 
form  was  translated  into  French  by  Carpentier '^  in  1904. 
This  edition  is  well  arranged  and  conveniently  indexed.  The 
same  author  discussed  the  law  at  length  in  volume  31  of 
Clunet  (1904),  pages  832-841.  Singer"  in  his  work  on  patents 
and  trade-mark  laws  of  the  world  devotes  pages  396-401  to  a 
discussion  of  patents  and  pages  401-403  to  trade-mark  law 

'  Castillo  y  Soriano,  Jose  del.  Manual  legislativo  de  la  propiedad  literaria 
y  artistica.     Madrid,  M.  Romero,  1901.     285  p. 

*  Rios,  Comelio.     De  la  propiedad  literaria;  bases  para  un  tratado  entre 

las  repiiblicas  americanas  y  Espana,  Buenos  Aires,  J.  Peuser,  1905. 

I   V. 

'Gonzalez  Hontoria,  Manuel.  Los  convenios  de  propiedad  intelectual 
entre  Espaiia  y  los  paises  ibero-americano.  Madrid,  Minuesa  de 
los  Rios,  1899.     38  p. 

*  Estasen,  Pedro.     Derecho  industrial  de  Espana.     2d.  cd.     Barcelona, 

F.  Seiz,  1901.     941.  p. 

*  Carpentier,  Paul.     La  loi  espagnole  sur  la  propri^t6  industrielle  du  16 

Mai  1902.     Paris,  A.  Chervalier-Marescq  Co.,  1904.     136  p. 
"  Singer,  Bertholdo.     Patent  and  trade-mark  laws  of  the  world.     Chicago, 
Hammond  Press  (W.  B.  Conkey  and  Co.),  1911.     539  p. 


INDIVIDUAL  PARTS  OF  CODE  AND  RELATED  SUBJECTS         57 

in  Spain.  A  translation  of  the  texts  of  the  law  is  not  given. 
Pella  '  published  a  useful  treatise  on  patents  which  he  revised 
in  concordance  with  the  act  of  T902.  The  work  is  intended 
for  the  use  of  inventors  and  manufacturers  as  well  as  lawyers. 
A  more  recent  practical  work  by  Rossello  ^  of  Catalonia  was 
published  in  1907,  giving  the  court  decisions  on  the  subject. 
The  first  volume,  covering  inventions,  of  Professor  Ramella's^ 
well-known  Italian  treatise  on  industrial  property  appeared 
in  a  Spanish  translation  in  191 3.  The  work  will  encompass 
two  volumes  when  completed. 

EMINENT   DOMAIN 

The  third  book  of  the  civil  code  deals  with  the  different 
methods  of  acquiring  ownership  of  property.  The  laws  for 
the  taking  of  private  property  for  public  use  through  the 
power  of  eminent  domain  may  be  appropriately  mentioned  at 
this  point.  It  is  interesting  to  note  that  the  civil  code  (sec. 
349)  contains  a  provision  that  private  property  shall  not  be 
taken  for  public  use  without  due  compensation — corresponding 
exactly  with  our  constitutional  provision.  Article  1456  pro- 
vides that  forcible  expropriation  on  account  of  public  utility 
shall  be  governed  by  the  provisions  of  special  laws.  The 
special  laws  in  force  are  comprised  in  the  act  of  January  10, 
1879,  which  was  followed  on  June  13,  1879,  and  March  10, 
1881,  as  is  customary  in  Spanish  legislation,  by  regulations 
for  its  application.  Article  29  of  this  act,  deahng  with  the 
survey  of  the  estate  and  the  appointment  of  experts,  was 
modified  by  the  statute  of  July  30,  1904. 

The  act  of  1879  was  extended  in  1884  to  Cuba  and  Porto 
Rico.  The  War  Department  in  its  translations  of  the  laws  of 
Porto  Rico  {supra,  p.  48)  includes  this  law  also,  with  a  com- 
plete index.     The  translation  ■*  can  be  obtained  separately  also. 

'  Pella  y  Forgas,  Jos6.  Nuevo  tratado  de  patentes  de  invencion  con 
arreglado  a  la  ley  de  propiedad  industrial  de  16  de  Mayo  1902  y 
su  reglemento  de  12  Jimio  de  1903.     Barcelona,  Jose  Espaca,  1904. 

23s  P- 

^  Rossello,  Antonio.  La  propiedad  industrial  y  leyes  que  la  regulan. 
Madrid,  Hijos  de  Reus,  1907.     584  p. 

^Ramclla,  A.  Tratado  de  la  propiedad  industrial.  Tomo  I.  Inventos 
industriales.     Madrid,  Hijos  de  Reus,  1913.     Vol.  2  in  publication. 

*  Division  of  customs  and  insular  affairs.  Translation  of  the  law  of  emi- 
nent domain  extended  to  Cuba  and  Porto  Rico  by  r.  d.  of  June 
13,  18S4,  and  regulation  for  its  application.  Washington,  Govern- 
ment Printing  Office,  1901.     61  p. 


58  GUIDE   TO  THE   LAW   OF  SPAIN 

Abella's  '  manual  of  the  law  of  eminent  domain  was  revised 
in  191 1.  A  treatise  by  Melgar  ^  published  in  1889  and  a  later 
work  by  Piernas  ^  may  be  mentioned. 

SUCCESSION   AND   DESCENT 

The  code  devotes  considerable  space  to  the  matter  of 
descent  of  property  and  succession  (sutesioncs).  Articles  688 
and  732,  which  deal  with  holographic  instruments,  were  modi- 
fied by  the  act  of  July  21,  1904.  A  special  institution  of  the 
civil  law,  the  compulsory  portion,  according  to  which  a  father 
or  mother  can  not  disinherit  the  legitimate  children,  was 
adopted  in  Spain.  Two-thirds  of  the  estate  are  thus  reserved. 
La  Coste  ■*  has  recently  written  in  French  a  monograph  on  the 
incjora  or  compulsory  portion,  discussing  its  history  and  theory, 
and  comparing  it  with  similar  institutions  of  foreign  countries. 

Spanish  treatises  and  other  works  on  succession  are  numer- 
ous. The  sections  of  Sanchez  Roman's  treatise  devoted  to 
the  subject  are  especially  valuable.  A  practical  work  is  that 
of  Ramos,''  in  which  the  changes  are  noted  and  the  decisions 
of  the  courts  are  cited  up  to  1898,  while  a  more  theoretical  one 
is  the  treatise  of  Lopez  y  Gomez."  Executors  and  adminis- 
trators are  discussed  in  a  work  published  anonymously '  in 
1890.  Villalobos  Lopez's  *  practical  treatise  on  the  distribu- 
tion of  estates  may  also  be  mentioned. 

'  Abella  y  Blave,  Fermin.      Manual  de  cxpropriacion  forzosa  y  obras 

piiblicas.     4th  ed.     Madrid,  Administracion,  1911,     808  p. 
^  Melgar  y  Abreu,  Bamardino  de.     Tratado  de  expropiacion  forzosa  per 

causa  de  utilidad  piiblica.     Madrid,  M.  Romero,  1889.     386  p. 
'  Piernas  y  de  Tineo,  J.     La  expropiacion  forzosa.     Legislacion  espanola. 

Madrid,  V.  Suarez,  1908.     256  p. 
■*  La  Coste,  Georges  de.     Essai  sur  les  mejoras  011  avantages  legitimaires 

dans  le  droit  espagnol  ancien  et  modeme.     Paris,  Arthur  Rousseau, 

1911.     524  p. 
'  Ramos,  RafaeL     De  las  sucesiones.     Tratado  teorico-practico  segiin  el 

codigo  civil.     Madrid,  Rev,  de  legislacion,  1896-1898.     2  v. 
'  Lopez  y  Gomez ,  Nicolas.    Tratado  teorico  legal  del  derecho  de  sucesi6n. 

Valladolid,  Pastor,  1891,  1893.     2  v. 
'  Anonimo.     Testamentarios  y  abintestates.     Madrid,  Ricardo  Alvarez, 

i8go.     .-186  p. 
'  Villalobos  Lopez,  Valerio.     Tratado  teorico-practico  de  particiones  de 

herencia  confonne  al  c6digo  civil.     3d  ed.     Madrid,  Hijos  de  Garcia, 

1901.     350  p. 


INDIVIDUAL  PARTS  or  CODE  AND  RELATED  SUBJECTS         59 

OBLIGATIOXS   AXD  CONTRACTS 

Book  four  of  the  code  undertakes  to  deal  fully  with  the 
subject  of  contractual  and  quasi-contractual  obligations.  The 
"general  part"  of  obligations  and  contracts,  which  includes 
the  two  first  titles  of  the  fourth  book  and  chapter  II  of  title 
XVI  of  the  same  book,  may  also  be  considered  mercantile 
laws,  since  their  application  to  questions  of  this  nature  is 
recognized  by  article  50  of  the  code  of  commerce. 

Probably  the  best  authority  on  the  law  of  obligation  and 
contract  is  the  fourth  volume  of  Sanchez  Roman's  Eshi- 
dios  de  dcrecho  civil  {supra,  p.  41).  Clemente  de  Diego's  treat- 
ment {supra,  p.  51)  of  the  subject  is  considered  by  many, 
however,  to  be  of  equal  value.  A  Spanish  translation  of  the 
seventh  edition  of  the  "theory  of  obligations"  by  the  Italian 
Giorgi '  was  published  in  nine  volumes,  in  1911-13,  by  the 
editorial  staff  of  the  Revista  general  dc  Icgislacion  y  juris- 
prudencia.  This  voluminous  work  contains,  besides  an  intro- 
duction by  Dato,  annotations  of  the  laws  of  Spain  and 
Spanish-America  with  the  decisions  of  the  .Supreme  Court  of 
Spain.  There  is  an  elementary  treatise,  by  Otero,-  which 
explains  in  detail    book  four  of  the  code. 

In  addition  to  the  more  general  works  numerous  treatments 
of  special  topics  have  appeared.  Infants'  contracts  and  obli- 
gations are  completely  discussed  by  Ramos  {supra,  p.  53). 
A  lucid  work  on  the  contractual  succession  to  property  by 
Garcia  Herreros  ^  warrants  mention.  A  more  scientific  and 
profound  work  is  that  of  Castillejo,^  which  was  rewarded  with 
a  prize  offered  by  the  University  of  Madrid.  The  assignment 
or  transfer  of  obligations  has  been  treated  of  by  Prof.  Clemente 
de  Diego ^  in  a  recent  work  (1912). 

'  Giorgi,  Jorge.     Teoria  de  las  obligaciones  en  el  derecho  civil  modemo. 

Translation  of  7th  ed.     Madrid,  Rev.  de  legislacion,  1911-1913.     9  v. 

'  Otero  y  Valentin,  Julio.     Tratado  elemental  del  derecho  de  obligaciones 

segiin  el  libro  IV  del  codigo  civil  espaiiol.     Con  un  prologo  de 

Lorenzo  de  Prado  y  Fernandez.     Valladolid,  Cuesta  e  Hijos,  1893. 

511  P- 
'Garcia Herreros,  Enrique.     La sucesion  contractual .     Prologo  de  Rafael 

de  Urena.     Madrid,  Hijos  de  Hernandez,  1902.     149  p. 
*Castillejo  y  Duarte,  Jose.     La  rcforma  contractual  en  el  derecho  de 

sucesiones.     Madrid,  Hernandez,  1902.     179  p. 
'Clemente    de    Diego,    F.     La   transmisibilidad    de    las   obligaciones. 

Madrid,  V.  Suarez,  1912.     352  p. 


6o  GUIDE  TO  THE   LAW   OF  SPAIN 

Rents  of  land  or  ground  rents  (censos)  are  treated  of  in 
title  seven.  In  Spanish  law  there  are  several  distinct  kinds 
of  rents  as  the  emphyteusis  {censo  enfitcusis),  local  ground 
rents  (Joros),  the  reservative  and  consignative  rents,  etc. 
Sanchez  de  Ocana '  has  published  a  work  which  enumerates 
and  discusses  these  fully,  treating  of  their  history  and  the 
legislative  and  customary  laws  affecting  them.  A  manual  re- 
lating to  leases  and  loans  in  accordance  with  the  civil  and 
commercial  codes  was  published  in  1889  by  Abella.^ 

MORTGAGES   (hIPGTECAS) 

The  civil  code  provides  only  briefly  for  the  contract  of 
mortgage.  In  article  1880  it  is  stated  that  the  "form, 
extension  and  effects  of  the  mortgage  and  also  what- 
ever relates  to  its  constitution,  modification,  and  extinction, 
and  all  that  has  not  been  comprised  in  the  chapter  shall 
remain  subject  to  the  provisions  of  the  law  of  mortgage 
which  continues  in  force."  Therefore  it  is  necessary  to 
examine  the  legislation  separate  from  the  code.  Up  to  1861, 
both  the  laws  and  decisions  on  mortgages  were  conflicting, 
resulting  in  much  confusion  and  instability  in  the  value  of 
the  mortgage.  In  1855,  a  commission  was  appointed  to 
frame  a  general  mortgage  law  to  take  the  place  of  all  the 
special  legislation  with  its  contradictions.  Two  projects 
(proyeclos)  were  submitted  by  the  commission  to  the  Cortes 
and  finally  after  many  revisions  a  general  law  was  promul- 
gated, February  8,  1861.  This  law  was  revased  in  1863  and 
1865,  and  finally  the  law  which  is  practically  the  one  now  in 
force  was  adopted,  December  21,  1869.  This  law  with  its 
regulations  of  October  28,  1870,  went  into  effect  January  i, 
1 87 1.  It  continued  in  effect  as  a  whole,  with  a  few  modifi- 
cations due  to  the  civil  code  of  1889,  until  1909,  when  some 
needed  reforms  were  instituted. 

The  law  of  mortgages  is  composed  of  fifteen  titles,  compris- 
ing over  400  articles.  The  instruments  requiring  record,  the 
method  and  effects  of  the  record,  cancellation  of  record,  kinds 

'  Sdnchez  de  Ocafia,  Ramon.     Estudio  critico  de  las  diversas  especies  de 

censos.     Madrid,  los  Huerfanos,  1892.     166  p. 
*  Abella  y  Blave,  Fermin.     Manual  de  arriendos  y  prestamos  con  arrcglo 

&.  los  vigentes  codigos  civil  y  de  comercio.     Madrid,  Administracion, 

1889.     341  p. 


INDIVIDUAL  PARTS  OF  CODE  AND  RELATED  SUBJECTS         6l 

of  mortgages;  the  manner  of  keeping  the  registries  and  various 
other  topics  are  covered.  In  addition  there  are  rules  for  the 
apphcation  of  the  law  and  a  tariff  or  schedule  of  fees.  The  law 
of  1909  contains  six  general  title  heads,  subdivided  into  43 
articles,  which  extend  the  business  use  of  mortgage,  and  change 
the  forms  of  recording,  as  well  as  some  provisions  concerning 
ancient  entries. 

The  mortgage  law  was  extended  to  Porto  Rico,  Cuba,  and 
the  Philippines  in  1893.  The  law  there  underwent  some 
necessary  changes  but  is  in  substance  similar  to  the  law  of 
Spain.  A  translation  of  this  law  was  made  by  the  War  De- 
partment '  with  the  general  regulations  for  its  execution.  A 
translation  of  the  general  law  of  1861  was  made  by  William 
Grain,-  an  Englishman.  A  short  glossary  of  Spanish  terms 
used  therein  is  included. 

The  many  works  on  mortgages  indicate  the  importance  of 
the  subject  in  Spain.  An  edition  of  the  law  as  changed  by 
the  new  reforms  of  April  21,  1909,  was  issued  in  1910  by  the 
Revista  de  legislacion.^  Vila*  published  in  19 13  a  well  anno- 
tated edition  of  the  mortgage  law  as  changed  by  recent  legis- 
lation. The  work  is  really  a  brief  commentary.  Aragones ' 
edited  a  "compendium"  of  mortgage  legislation  in  191 1,  and 
also,  separately,  a  brief  discussion  with  the  texts  of  the  changes 
made  by  the  law  of  1909.  What  was  generally  considered  the 
best   commentary   on   mortgage   legislation   before   the   new 

'  Translation  of  the  mortgage  laws  for  Cuba,  Puerto  Rico  and  the  Phil- 
ippines.    (1893).     By  United  States  War  Department,  Washington, 
Government  Printing  Office,  1899.     90  p. 
Same.     General  Regulations  for  the  execution  of  the  mortgage  law  ... 
Washington,  Government  Printing  Office,  1S99.     152  p. 

-The  ley  hipotecaria  of  Spain.  Translated  and  edited  by  William 
Grain.  ...  London,  H.  Sweet,  1867.     149  p. 

'  Nueva  ley  hipotecaria,  pdblicada  por  real  decreto  de  diciembre  de 
1909  en  complimento  de  la  sexta  disposicion  adicional  de  la  ley  de 
21  de  abril  del  mismo  ano.  Madrid,  Rev.  de  Icgislacion,  1910. 
92  p. 

■*  Vila  Scrra,  Jos6.  Novisima  legislacion  hipotecaria.  Valencia,  Impr. 
del  autor,  1913.     708  p. 

*  Aragones  y  Carsi,    Pascual.     Compendio    de    legislacion  hipotecaria. 
Madrid,  V.  Suarez,  1909-igii.     2  v. 
Same.     Modificacion  de  algunos  articulos  de  la  ley  hipotecaria  por  la 
de  22  abril  de  1909.     Madrid,  Gongora,  1909.     135  p. 


62  GUIDE  TO  THE   LAW   OF  SPAIN 

changes  in  the  law  is  that  of  Galindo  and  Escosura,'  the 
fourth  edition  of  which  appeared  in  1903.  It  should  be 
noted  that  the  third  edition  contains  the  law  as  enforced  in 
Cuba,  Porto  Rico  and  the  Philippines  with  some  comments. 
Another  valuable  commentary  in  current  use  is  the  work  of 
Martinez  Moreda,-  although  it  has  not  been  revised  since 
1906.  A  recent  (1912)  work  is  the  "Mortgage  legislation" 
of  Diaz  Moreno.^  This  work  is  arranged  in  form  of  replies  or 
expositions  to  the  program,  or  list  of  topics,  for  the  first  exami- 
nation of  applicants  for  registers  of  property.  It  discusses 
the  diiferent  topics  at  some  length  and  includes  the  law  of 
1909.  The  decisions  of  the  Supreme  Court  from  1861  to 
December  31,  1900,  have  been  topically  arranged  in  alpha- 
betical order  by  Ordriozola.* 

Attention  may  be  called  to  a  few  of  the  more  important 
treatises.  A  recent  (1912)  comprehensive  work  on  the  sub- 
ject of  mortgage,  and  also  notarial  law,  in  four  volumes  was 
published  by  Barrachina,^  an  eminent  jurist.  The  mortgage 
act  of  1909  is  thoroughly  discussed.  Oliver''  has  written  a 
"fundamental  and  systematic  exposition  of  the  law  of  mort- 
gage" in  force  in  the  Peninsula  and  the  foreign  colonies. 
A  work  on  the  law  of  pledges  and  securities  for  loans, 
with  especial  reference  to  agriculturists  and  farmers,  was  pub- 
lished by  Ramos  in  1910.'  It  includes  more  than  the  title 
implies   as  the   author   devotes   a    portion    of   the   work   to 

'  Galindo  y  de  Vera,  Leon;  and  Escosura  y  Escosura,  Rafael  de  la. 
Comentarios  a  la  legislacion  hipotecaria  de  Espana.  4th  ed.  Mad- 
rid, Antonio  Marzo,  1903-1904.     5  v. 

^  Martinez  Moreda,  M.  Comentarios  y  jurisprudencia  a  la  legislacion 
hipotecaria  en  forma  alfabetica.  Madrid,  Bailly-Balliere  e  Hijos, 
1906.     2  V. 

•'  Diaz  Moreno,  Eustaquio.  Legislacion  hipotecaria.  Madrid,  A.  Marzo, 
1911-1912.     2  V. 

*  Odriozola  y  Grimaud,  Carlos  de.     Diccionario  de  jurisprudencia  hipo- 

tecaria de  Espana  ...  desdeel  ano  1S61  hasta3i  dediciembrede  1900. 
Madrid,  Leopoldo  Martinez,  1901.     1156P. 

*  Barrachina,  Federico.     Derecho  hipotecario  y  notarial.     Castellon,  J. 

Armengotthejos,  1910-1912.     4  V. 
"  Oliver  y  Esteller,  Bienvcnido.     Derecho  inmobiliario  espaiiol.     Espo- 

sicion  fundamental  y  sistematica  de  la  ley  hipotecaria.     Madrid, 

Sucesores  de  Rivadeneyra,  1892-1896.     931  p. 
'  Ramos,  Rafael.     La  prenda  agricola  6  hipoteca  mobiliaria.     Madrid, 

Rev.  de  legislacion,  1910.     370  p. 


COMMERCIAL   CODE  63 

discussions  of  the  uncultivated  lands  and  waste  lands — of 

which  there  is  such  an  immense  area  in  Spain — the  lack  of 

fann  labor,  its  causes  and  effects,  etc.     Deficiencies  in  the 

civil  code,  so  far  as  it  treats  of  this  subject,  are  exposed  and 

criticized,  and  at  times  foreign  legislation  is  drawn  upon  for 

comparison. 

COMMERCIAL   LAW 

COMMERCIAL,   CODE 
History 

The  need  of  a  unitive  and  general  commercial  law  was  im- 
perative, as  in  civil  law,  but  the  realization  of  a  commercial 
code  anticipated  that  of  the  civil  code.  It  has  been  said  that 
Spain  has  the  distinction  of  producing  the  first  code  of  mer- 
cantile law  in  the  world  in  her  "Ordinances"  of  the  seventeenth 
century,  as  in  them  is  combined  in  the  first  single  body  of  law 
every  matter  of  mercantile  law  applicable  to  land  and  sea. 
The  statute  that  really  covered  the  entire  Peninsula  for  the 
first  time  was  the  "Ordinances  of  Bilboa,"  1737,  which  also 
spread  to  the  American  colonies.  This  code  remained  in  force 
in  Mexico  even  after  its  independence  until  the  Mexican  code 
of  1884  went  into  eft'ect.  The  "Ordinances  of  Bilboa"  was 
intended  as  a  code  for  merchants  especially. 

The  modern  movement  for  codification  resulted  in  the  code 
of  May  30,  1829,  which  went  into  effect  on  January  i,  1830. 
This  code  was  practically  the  work  of  one  jurist,  Pedro  Sainz 
de  Andino,  the  secretary  of  the  Commission  appointed  for  its 
drafting.  The  necessary  reform  of  procedure  in  commercial 
causes  was  secured  by  the  law  of  procedure  of  July  2,  1830. 
This  and  the  law  of  December  10,  1831  creating  the  official 
exchange  of  Madrid  and  regulating  contracts  for  public  and 
commercial  securities  were  also  the  work  of  Sainz  de  Andino, 
the  "author  of  Spanish  commercial  law,"  as  he  is  referred  to 
in  history. 

Before  1868  the  text  of  the  code  of  commerce  underwent  no 
alteration,  although  some  of  its  provisions  had  been  repealed, 
and  others  modified,  by  laws  of  October  28  and  November  i, 
1837,  relating  to  the  purchase  of  foreign  ships  for  a  merchant 
marine,  and  to  stock  companies.  Nevertheless,  the  tremendous 
industrial  and  commercial  development  of  Spain  during  the 


64  GUIDE  TO  THE   LAW   OF   SPAIN 

middle  of  the  nineteenth  cen  tury  emphasized  the  necessity  for 
many  reforms  in  the  code.  By  the  laws  of  December  6,  1868, 
and  July  30,  1874,  important  changes  were  made.  The  code  of 
commerce  now  in  force  was  promulgated  by  royal  decree  of 
August  22,  1885,  and  came  into  force  on  January  i,  1886.  It 
was  extended  to  Cuba  and  Porto  Rico  on  January  26,  1886, 
and  to  the  Philippines  in  1S88.  The  Mexican  code  of  1889, 
too,  is  practically  a  reproduction. 

The  civil  code  supplements  the  commercial  code  in  com- 
mercial transactions,  and  in  this  connection  it  may  be  said  that 
the  most  important  provisions  of  the  civil  code  are  book  IV, 
title  I,  obligations;  title  II,  contracts;  and  title  XVI,  obliga- 
tions not  based  upon  agreement,  or  quasi-contracts.  These 
sections  of  the  civil  code  are  translated  in  the  "Commercial 
laws  of  the  world"  (infra,  65).  Several  important  supple- 
mentary laws  have  been  enacted  separately,  e.  g.  the  decree 
of  December  21,1 885  for  the  organization  and  government  of 
the  mercantile  register;  laws  of  March  18,  1S74,  July  14,  1891, 
and  May  13,  1902  in  regard  to  the  Bank  of  Spain;  the  estab- 
lishment of  the  Mortgage  Bank  of  Spain  (Dec.  2,  1872),  and 
of  chambers  of  commerce,  industry  and  navigation  (Apr.  9, 
1886),  amended  materially  June  31,  1901,  December  13, 1901, 
August  30,  1902  and  February  24,  1908;  the  law  of  maritime 
mortgage;  the  law  of  April  9,  1904  on  compositions  with 
creditors  in  prevention  of  bankruptcy  by  companies  which  are 
concessionaires  of  public  works;  the  establishment  of  clearing 
houses  (Mar.  30,  1905);  and  several  important  insurance  laws. 

Contents 

The  Commercial  Code  contains  general  and  special  rules 
relating  to  mercantile  traders,  associations,  commerce  (includ- 
ing maritime  commerce),  and  all  commercial  transactions. 
There  are  other  supplementary  statutes  which  must  be  con- 
sulted in  many  cases.  The  code  is  divided  into  four  books 
embracing  27  titles  and  955  articles. 

Book  one  treats  of  commerce  and  commercial  persons  in 
general,  and  registry. 

Book  two  deals  with  contracts  which  are  essentially  com- 
mercial in  character,  including  mercantile  partnership  and  cor- 
porate agreements,  their  expiration  and  liquidation,  contracts 


COMMERCIAL  CODE  65 

of  banks,  railways,  and  other  public  service  companies,  sales, 
loans,  contracts  for  land  carriage,  insurance,  mercantile 
guarantees,  and,  finally,  commercial  paper. 

Book  three  is  devoted  to  maritime  commerce,  and  contains 
elaborate  provisions  in  regard  to  the  law  of  shipping. 

Book  four  contains  provisions  in  regard  to  suspension  of 
payment  or  insolvency,  (a  legal  institution  introduced  by  the 
code),  bankruptcy,  and  prescription  or  limitation  of  actions 
in  commercial  matters. 

General  Literature 

The  commercial  laws  of  Spain  are  included  in  the  monu- 
mental series  Handelsgeseizc  dcs  Erdballs  *  which  is  now  being 
published  in  English  translation.  This  great  undertaking,  in 
which  numerous  eminent  specialists  of  all  nations  have  col- 
laborated, is  a  compilation  of  the  commercial  laws  of  the  world 
in  three  editions  or  translations,  German,  French  and  English. 
The  work  contains  the  commercial,  bills  of  exchange,  bank- 
ruptcy and  maritime  laws  of  all  civilized  nations,  together 
with  commentaries  on  civil  procedure,  constitution  of  the 
courts,  and  trade  customs  in  the  original  languages  with  trans- 
lation. The  Spanish  laws  will  be  found  in  volume  VII  of 
the  German  edition  (also  reprinted  separately),  and  in  volume 
XXXII  of  the  American  edition. 

The  commercial  code  as  in  force  in  Cuba,  Porto  Rico  and 
the  Philippines,  was  translated  into  English  by  the  War 
Department  ^  in  1899  and  was  reprinted  in  the  "Laws  of  Porto 
Rico"  {supra,  p.  48)  in  1909.  Attention  may  again  be  called 
to  the  fact  that  these  translations  by  the  War  Department 
(being  very  literal)  have  in  many  instances  proven  defective 

'  The  commercial  laws  of  the  world.  American  cd.  Consulting  editor. 
Sir  Thomas  Edward  Scrutton  .  .  .  general  editor  William  Bow- 
stead  .  .  .  with  a  general  introduction  by  Charles  Henr>'  Huber- 
ich  .  .  .  Boston,  Boston  Book  Co.,  1911-13.  35  v.  (in  course  of 
publication). 
Same.  German  edition.  Begriinder  des  werkes :  Dr.  Oskar  Borchardt. 
Berlin,  R.  v.  Decker,  igii-1913.     14  v.  (in  course  of  publication). 

^  The  code  of  commerce  in  force  in  Cuba,  Porto  Rico,  and  the  Philip- 
pines. Translation  by  the  United  States  War  Department.  Wash- 
ington, Government  Printing  Office,  1899.     291  p. 

77231°— 15 5 


66  GUIDE  TO  THE   LAW  OF  SPAIN 

and  inaccurate.  The  legislative  history  of  the  Spanish  code 
of  1829,  with  a  brief  description  of  its  contents,  appeared 
in  the  English  periodical,  the  Law  Magazine,  volume  7,  pages 
158-162,  a  few  years  after  its  promulgation.  Foucher*  trans- 
lated the  code  of  1829,  with  the  relevant  laws  of  procedure,  into 
French.  The  present  code  of  1885  was  translated  into  French 
by  Henri  Prudhomme  ^  in  1 89 1 .  Some  amendments  to  the  code 
have  since  been  enacted.  Mr.  Jos^  A.  Espiritu  has  presented  in 
volume  I,  number  i,of  the  Phillipine  law  journal,  August,  1914, 
pages  22-42,  a  detailed  outline  of  the  commercial  code,  indi- 
cating the  parts  of  that  code  which  are  still  in  force  in  the 
Philippines,  and  those  which  have  been  repealed  by  subse- 
quent legislation.  The  articles  by  title  indicate  brief  con- 
cordances and  include  annotations  of  recent  decisions  handed 
down  since  the  American  occupation. 

Many  editions  of  the  code  have  been  published.  Besides 
the  official  editions  of  the  Codes  of  1829^  and  of  1885  *  and 
of  the  Code  for  the  Philippine  Islands  and  other  foreign  pos- 
sessions,^ the  Revista  de  los  tribunales  ^  from  time  to  time  pub- 
lishes private  editions,  which  include  the  latest  legislation 
and  are  annotated  with  the  decisions  of  the  Supreme  Court. 
Medina  and  Maranon's  compilation  of  the  civil  laws  of  Spain 
{supra,  p.  48)  contains  the  commercial  codes  and  related  laws 
enacted  up  to  191 1.    Walton''  has  published  a  collection  of  the 

'  Code  de  commerce  et  loi  de  procedure  sur  les  affaires  et  causes  de  com- 
merce d'Espagne.  Traduit  par  Victor  Foucher.  Rennes,  Blin, 
1838.     580  p. 

2  Code  de  commerce  espagnol.  Traduit  et  annote  par  Henri  Prudhomme. 
Paris,  Durand  et  Pedone-Lauriel,  1891.     343  p. 

'  Codigo  de  comercio.     Edicion  oficial.     Madrid,  Real,  1829.     335  p. 

*  Codigo  da  comercio,  edicion  oficial.  Madrid,  Ministerio  de  Gracia  y 
Justicia,  1885.     466  p. 

^  Codigo  de  comercio  para  las  Islas  Filipinos  y  demas  archipi^lagos  es- 
pafioles  de  Oceania.  Ed.  oficial.  Madrid,  Ministerio  de  Ultramar, 
1888.     299  p. 

^  Codigo  de  comercio  con  las  Ultimas  rcformas  .  .  .  concordado  con  las 
leyes  civiles,  etc.  .  .  .  anotado  con  la  jurisprudencia.  Por  la  re- 
daccidn  de  la  Revista  de  los  tribunales.  i2tli  ed.  Madrid,  Gon- 
gora,  1910.     876  p. 

'  Walton,  Clifford  S.  Leyes  comerciales  y  maritimas  de  la  Am^rica- 
Latina  comparadas  entre  si  y  con  los  codigos  de  Espana  y  las  leyes 
de  los  Estados  Unidos  de  America.  Washington,  del  Gobiemo, 
1907.     s  V.     (Also  London,  Hirschfield,  1908.     5  v.) 


COMMERCIAL   CODE  67 

commercial  and  maritime  laws  of  Latin-American  countries, 
comparing  them  with  the  Spanish  commercial  code  and  the 
relevant  laws  of  the  United  States.  The  Spanish  code  is 
used  as  the  basis  and  the  complete  text,  annotated  with  deci- 
sions of  the  Supreme  Court,  is  set  forth. 

In  addition  to  the  general  collections  of  court  reports  there 
is  a  valuable  digest  of  the  judicial  decisions  relating  specifically 
to  commercial  law  edited  by  Estasen.'  Three  volumes  have 
appeared,  in  which  are  digested  the  reports  for  the  years 
1838-1892,  1892-1902,  1902-1908.  In  191 1  Pastor^  pub- 
lished a  work  on  the  commercial  code  annotated  by  the  deci- 
sions of  the  Supreme  Court.  The  compiler  gives  the  reports 
under  a  plan  designed  for  rapid  research.  Barrio'  brought 
out  in  1 910  a  collection  of  the  decisions  of  the  Supreme  Court 
construing  the  commercial  code. 

The  commentaries  on  the  code,  while  numerous,  are  not  so 
voluminous  as  those  on  the  civil  code.  The  editors  of  the 
Revista  general  de  legislacidn'^  published  in  1886  a  two  volume 
commentary,  the  code  being  compared  with  foreign  law. 
Garcia  Moreno  ^  has  issued  an  edition  of  the  code  designed 
especially  for  the  practicing  lawyer  {abogado).  A  useful  work 
for  students  is  that  of  Teofilo.' 

'  Estasen,  Pedro.  Repertorio  de  la  jurisprudencia  mercantil  espanola 
6  compilacion  completa  .  .  .  de  las  diversas  reglas  de  jurispru- 
dencia .  .  .  Barcelona,  Penella  y  Bosch,  1894 — 1903.  2  v. 
Same.  Repertorio  de  la  jiuisprudcncia  y  doctrina  mercantil  d  indus- 
trial espanola  6  compilacion  .  .  .  en  forma  de  prontuario.  Madrid, 
Rev.  de  legislacion,  191 1.     314  p. 

'  Pastor  y  Bustos,  F.  El  codigo  de  comercio  intcrpretado  por  la  juris- 
prudencia del  tribunal  supremo.  Madrid,  Rev.  de  legislacion, 
1911.     2  V.     (Vol.  3  in  publication.) 

^  Barrio  y  Morayto,  L.  Espiritu  de  la  jurisprudencia  espaiiola.  La  del 
codigo  de  comercio.     Madrid,  "La  Editora,"  1910.     575  p. 

■*  Codigo  de  comercio  de  1885.  Comentado  y  concordado  .  .  .  por  la  rc- 
daccion  de  la  Revista  general  dc  legislacion.  Madrid,  Rev.  de  leg- 
islacion, 1886.     2  V. 

''  Garcia  Moreno,  Alejo.  Codigo  de  comercio  de  1885  con  las  reformas hasta 
1907  y  anotado  con  la  doctrina  de  los  autores  y  todas  las  sentencias 
del  tribunal  supremo.     Madrid,  Antonio  Marzo,  1902.     577  p. 

"  Teofilo  y  Doroteo  .  .  .  Codigo  de  comercio  profusamcnte  anotado  y  pre- 
cedido  de  una  breve  resena  del  movimiento  mercantil  a  traves.de  los 
siglos.     Madrid,  J.  Corrales,  1902.    312  p. 


68  GUIDE  TO  THE   LAW   OF   SPAIN 

Among  the  treatises  on  commercial  law,  the  "  Instituciones" 
by  Estasen  *  is  perhaps  the  most  complete.  The  work  com- 
prises eight  volumes  and  is  divided  into  four  main  divisions — 
history,  legislation,  special  industrial  law  and  theory.  It 
is  intended  for  teachers  of  law  and  students  as  well  as  for 
courts  and  practitioners.  A  work  well  recommended  is  the 
Curso  or  lectures  on  philosophical,  historical  and  positive  com- 
mercial law  by  Alvarez  del  Manzano.^  One  of  its  two  volumes 
appeared  in  a  second  edition  in  1903.  This  volume  is  general 
and  is  complete  in  itself.  The  author's  original  intention 
to  issue  a  larger  work  has  been  carried  out  by  his  participa- 
tion in  the  publication  of  the  projected  sixteen  volume  work 
mentioned  below.  Another  general  work  is  the  two  volume 
treatise  of  Blanco  Constans.^  The  author  does  not  confine 
himself  to  Spanish  law  but  treats  of  the  subject  in  general, 
including  the  legislation  in  other  countries. 

Three  well  known  Spanish  jurists,*  of  whom  Alvarez  del 
Manzano  is  one,  undertook  in  1909  to  publish  the  commercial 
laws  of  Spain  and  the  other  nations  of  the  world.  The  whole 
project  is  intended  to  include  sixteen  volumes,  in  which  the 
authors  plan  to  cover  every  phase  of  the  subject.  Four 
volumes  have  appeared,  volume  I  relating  to  merchants  and 
commercial  transactions,  volume  II  dealing  with  mercantile 
registration,  volume  III  with  accounting,  and  volume  IV 
with  boards  of  trade  and  trade  names.  Volume  V,  which 
will  contain  general  discussions  of  commercial  contracts,  mer- 
cantile exchanges,  stock  exchanges,  and  factors,  and  volume 
VI,  which  will  deal  with  mercantile  companies  or  corporations, 

'  Estas6n,  Pedro.  Instituciones  de  dereclio  mercantil.  2d.  ed.  Mad- 
rid, Rev,  de  legislacion,  1907.     8  v. 

^  Alv4rez  del  Manzano  y  Alvdrez  Rivera,  Faustino.  Cnrso  de  derecho 
mercantil  filosofico,  historico  y  vigente  (cspanol  y  extranjero). 
Parte  general.     2d.  ed.     Madrid,  V.  Suarez,  1903.     871  p. 

3  Blanco  y  Constans,  Francisco.  Estudios  elementales  de  dereclio  mer- 
cantil segiin  la  filosof  ia,  la  historia  y  la  legislacion  positiva  vigente  en 
Espana  y  en  las  principales  naciones  de  Europa  y  America.  Mad- 
rid, La  Sucesora  de  M.  Miniiesa  de  los  Rios,  1901-1902.     2  v. 

*  Alvarez  del  Manzano  y  Alvarez  Rivera,  Faustino;  Bonilia  y  San  Mar- 
tin, Adolfo;  and  Miiiana  y  Villagrasa,  Emilio.  Codigos  de  comercio 
espanoles  y  extranjeros  .  .  .  comentados,  concordados  y  anotados  6 
estudios  fundamentales  de  dereclio  mercantil  universal.  Madrid, 
V.  Suarez,  1909-1914.     4  v.     (Others  in  course  of  publication.) 


COMMERCIAL   CODE  69 

are  announced  for  publication  during  1914.  The  completion 
of  this  undertaking,  aside  from  its  contribution  to  the  world's 
legal  literature,  should  be  of  great  practical  benefit  to  all 
Spanish-speaking  countries. 

A  good  handbook  of  Spanish  commercial  law  is  the  manual 
of  Benito,'  an  authority  on  the  subject,  and  the  author  of  the 
section  on  Spain  in  the  "Conunercial  laws  of  the  world" 
(supra,  p.  65) .  The  work  includes  one  volume  devoted  entirely 
to  introductory  remarks  on  commercial  law  which  was  pub- 
hshed  several  years  in  advance  of  the  handbook.  Probably 
the  most  practical  manual  on  the  subject  appeared  in  191 3 
from  the  pen  of  Minana,^  one  of  the  leading  modern  special- 
ists in  this  branch  of  the  law.  This  manual  includes  the  code, 
supplementary  laws,  acts,  decrees,  etc.,  with  annotations. 

A  brief  treatise  on  Spanish  and  international  commercial  law 
was  written  by  Carreras  and  Gonzalez  Revilla,^  the  seventh 
edition  of  which  appeared  in  1910.  Gual  Villalbi's  *  recent 
(191 3)  treatise  on  international  commercial  law  covers  the 
conflict  of  laws. 

Mercantile  register.^A  mercantile  register  for  indi^adual 
merchants  and  companies  exists  in  Spain.  It  is  obUgatory 
for  companies  and  vessels,  and  practically  for  merchants  in 
general,  to  register.  Sections  16-32  of  the  commercial  code 
contain  the  general  rules.  The  regulations  for  the  organiza- 
tion and  government  of  the  mercantile  register  were  approved 
by  royal  decree  December  21,  1885.  An  official  edition^  of 
the  statistics  of  the  Register,  compiled  by  the  general  director, 
appeared  in  1902. 

Acts  of  commerce. — Book  one  goes  into  much  detail  con- 
cerning acts  of  commerce,  but  title  IV,  section  54,  provides 

'  Benito  y  Endara,  Lorenzo.  Manual  de  derecho  mercantiL  Valencia, 
Domenech,  1904-1908.     3  v. 

^  Minana  y  Villagrasa,  Emilio.  Codigo  de  comercio.  Madrid,  Hijos  dc 
Reus,  1913.     1,166  p. 

'Carreras  y  Gonzalez,  Mariano  and  Gonzalez  Revilla,  Lcopoldo.  De- 
recho mcrcantil  de  Espana  y  derecho  mercantil  intemacional.  7th 
ed.     Madrid,  los  Sucesores  de  Hernando,  1910.     S5°  P- 

*Gual  y  Villalbi,  Pedro.  Tratado  de  derecho  mercantil  intemacional. 
Madrid,  A.  Marzo,  1913.     616  p. 

^  Estadistica  del  registro  mercantil  formada  por  la  direcci6n  general  de 
los  registros.  .  .  .  Ed.  oficial.  Madrid,  Sucesores  de  Rivadeneyra, 
1901.     120  p. 


70  GUIDE  TO  THE   LAW   OF   SPAIN 

that  in  all  instances  where  there  is  no  express  provision  in  the 
code  the  common  law  governs.  Zurita  Nieto '  has  given,  in  the 
first  volume  of  his  studies  of  comparative  mercantile  legis- 
lation, a  discussion  of  mercantile  contracts  and  merchants  in 
general.  Lastres  -  has  likewise  published  a  brief  monograph 
on  commercial  transactions.  The  laws  for  commercial  agents 
such  as  factors,  brokers  and  traveling  salesmen  have  been 
discussed  by  Benito  ^  in  a  short  article  on  mercantile  agency, 
published  separately,  and  by  Estascn  *  in  a  special  work. 

The  law  governing  the  account  current,  the  contract  itself 
and  its  effect,  is  well  covered  in  two  treatises  on  the  subject, 
one  by  Valles  ^  of  Barcelona,  and  the  other  by  Estasen "  who 
cites  all  the  decisions  of  the  Supreme  Court  in  point. 

STOCK   EXCHANGES 

The  bolsas  de  comercio  or  the  commercial  exchanges  are  the 
legally  authorized  public  establishments  in  which  merchants 
and  intermediary  agents  enter  certain  kinds  of  contracts.  The 
code,  in  sections  64-80,  authorizes  the  creation  or  establishment 
of  these  bolsas  in  cities  where  they  are  needed,  enumerates  the 
the  contracts  to  be  entered  into  on  the  exchanges  and  provides 
regulations  for  the  conduct  of  business.  It  is  necessary,  how- 
ever, to  consult  the  reglamento  or  decree  for  the  regulation  of 
the  stock  exchanges  enacted  December  31,  1885,  to  which  a 
few  amendments  have  been  made.  A  market-overt  law 
prevails  also  for  sales  in  public  places  and  shops.  The  irre- 
vocability of  the  draft  payable  to  bearer  used  in  the  exchange 
in  cases  of  theft,  robbery  or  loss  is  interestingly  discussed  in 

'  Zurita  Nieto,  Benito.     Los  actos  de  comercio  considerados  en  si  mismos 

y  en  relacion  con  los  comerciantes.     (Estudios  de  legislaciun  mer- 

cantil  comparada  tomo   1°).     Madrid,  "El  trabajo,"  1899.     151  p. 
"  Lastres,  Francisco.     Los  actos  de  comercio  y  la  jurisdicci6n  mercantiL 

Madrid,  M.  G.   Hernandez,    1888.     20  p. 
2  Benito  y  Endara,  Lorenzo.     El  mandato  mercantil.     Barcelona,  "El 

viajante,"  1904.     Pamphlet. 
*  Estasen,  Pedro.    El  viajante  y  el  representante  de  comercio  segiin  el 

derecho  espanol.     Barcelona,  "El  viajante,"  1904.     i  v. 
'  Valles  y  Pujals,  Jose.     El  contrato  de  la  cuenta  corrienta.     Barcelona, 

Guinart  y  Pujolar,  1906.     308  p. 
'  Estasen,  Pedro.     De  las  cuentas  corrientes  y  de  los  contratos  de  cuentas 

corrientes  segdn  el  derecho  espanol.     Madrid,  Hijos  de  Reus,  19 10. 

211  p. 


COMMERCIAL   CODE  71 

the  work  of  Maluquer,'  annotated  with  the  decisions' of  the 
Supreme  Court.  Many  works  have  been  published  on  the  law 
governing  the  operation  of  the  holsas  and  related  questions. 
Capdcville  -  in  his  work  covers  reliably  the  practical  operation 
of  the  "bolsa"  as  employed  in  Spain  and  elsewhere,  especially 
in  ]VIadrid,  Paris,  and  Brussels.  He  includes  a  glossary  of  the 
principal  words  or  terms  used  on  the  exchange.  The  eminent 
specialist  Lastres  ^  has  published  a  work  on  the  operations  on 
the  exchange  with  special  reference  to  the  public  securities  of 
brokers  and  other  agents.  A  new  (1914)  edition  is  now  in 
preparation.  A  history  of  the  bolsa  is  included  in  the  older 
brief  treatise  of  Montero  ^  covering,  in  addition,  commerce  in 
general  and  mercantile  companies. 

BANKING  LAW 

General  provisions  for  the  regulation  of  banking  transac- 
tions are  found  under  section  175  et  seq.  of  the  code.  The 
banking  system  of  Spain  is  based  on  a  national  bank,  the 
Banco  dc  Espana,  established  by  royal  decree  of  March  19, 
1 874.  This  is  the  only  bank  of  issue  that  exists  in  the  nation. 
This  powerful  institution  is  governed  by  the  royal  decree  that 
established  it;  by  the  law  of  July  14,  1891;  by  the  law  of 
May  13,  1902,  and  by  its  constitution  and  by-laws  approved 
by  royal  decree  of  Dec.  10,  1900,  and  Jan.  5,  1901.  Several 
collections  ^  of  the  laws  and  statutes  governing  the  National 
Bank  have  been  published  from  time  to  time,  the  latest  in 
1914.     A  special   edition  of  the  review  "Vida  Economica," 

'  Maluquer  y  Viladot,  Juan.     Irreivindicaci6n  de  efectos  al  portador  en 

los  casos  de  robo.hurtoo  extravio.     Estudio   sobre  las  bolsas  de 

comercio  y  sus  agentes  mediadores.     Anotado  con  la  jurisprudcncia 

.  .  .  prologo  de  Antonio  Maura.     Barcelona,  Henrich  y  Ca.,  1901. 

238  p. 
^  Capdeville,  Edmundo.     La  bolsa  at  alcance  de  todos.     Las  operaciones 

en   las  bolsas  de   Madrid,    Paris,    Bruselas.     Madrid,   Nacional   y 

Extranjera,  1905.     igS  p: 
'  Lastres,  Francisco.     Operaciones  de  bolsa.     Contrataci6n  sobre  efectos 

publicos  de  los  corredores  de  comercio  ye  dc  los  agentes  de  bolsa. 

Madrid,  V.  Suarez,  1S78.     344  p. 
*  Montero  y  Vidal,  Jos^.     La  bolsa,  el  comercio,  y  los  sociedades  mer- 

cantiles.    3ded.    Madrid,  Huerfanosde  la  Sagrada  Corazon  deJesVis, 

1883.     262  p. 
°  Banco  nacional  de  Espafia.     Leyes,  estatutos  y  reglamento.     Madrid, 

Bernardo  Rodriguez,  1911.     167  p.    Suppl.     1914. 


72  GUIDE   TO   THE   LAW   OF   SPAIN 

volume  3  (32  pages),  published  in  April,  1914,  gives  the  his- 
tory of  the  National  Bank  of  Spain,  texts  of  relevant  laws, 
and  some  statistics.  A  general  work  on  the  question  of 
money  and  bills  of  exchange  was  published  by  Gil '  in  1906. 

The  code  contains  in  articles  212-217  special  rtiles  for  agri- 
cultural banks  and  societies.  Noguer^  has  recently  (1912) 
pubUshed  a  practical  work  on  the  agricultural  cooperative 
credit  associations  in  Spain,  including  sections  devoted  to 
historical  and  theoretical  discussions.  The  author  also  dis- 
cusses foreign  institutions  of  a  similar  nature.  Ramos,'  in 
1903,  issued  a  treatise  on  agricultural  credit  or  loans.  The 
work  includes  discussions  of  credit  societies,  the  relevant  pro- 
visions in  the  commercial  code,  the  mortgage  bank,  etc. 

Credit  and  loan  associations  dealing  with  mortgages  on  real 
estate  were  scarce  in  Spain  prior  to  1872.  Although  their  legal 
existence  was  recognized  by  royal  decree  of  January  5,  1869, 
the  few  established  up  to  1872  were  more  or  less  unsafe.  To 
remed}'  the  situation  the  law  of  December  2,  1872,  was 
enacted,  which  established  the  Banco  hipotecario  espahol  or 
the  Mortgage  Bank  of  Spain.  This  bank  enjoys  some  exclu- 
sive privileges  and  its  charter  extends  for  ninety-nine  years. 
The  law  creating  it  contains  thirty-eight  articles  providing 
specific  rules  for  the  carrying  out  of  its  purposes. 

The  establishment  of  clearing  houses  at  Madrid  and  Bar- 
celona was  authorized  by  royal  decree  of  March  30,  1905. 

COMMERCIAL   ASSOCIATIONS 

The  various  kinds  of  corporations  and  associations  of  natu- 
ral persons  for  business  purposes  are  dealt  with  in  book  II  of 
the  commercial  code.  Section  122  enumerates  the  three 
general  forms  recognized  by  Spanish  law:  (i)  The  ordinary 
unlimited  partnership  {la  compania  colectiva) ;  (2)  the  limited 
form  (compania  en  comandila)  in  which  one  or  more  persons 
bring  fixed  capital  into  the  common  fund,  to  abide  by  the 
results  of  the  partnership  operations,  directed  exclusively  by 

•  Gil  y  Pablos,  F.     Estiidios  sobre  la  moneda  y  los  cambios.     Madrid, 

Rev.  de  legislacion,  1906.     383  p. 

*  Noguer,   Marciso.     Las  cajas  rurales  in   Espana  y  en  el   extranjero. 

Madrid,  Administracion  de  Razon  y  Fe,  1912.     668  p. 
'  Ramos,   Rafael.     El  cr6dito  agricolo.     (Cajas  rurales  de   pr^stamos.) 
Madrid,  Hijos  de  Reus,  1903.     2  v. 


COMMERCIAL   CODE  73 

Others  in  the  collective  name;  (3)  the  limited  fonn  or  stock 
company  {compania  anonima)  which  corresponds  to  our 
"corporation." 

The  compania  en  coviandita  is  in  principle  the  prototype  of 
the  limited  partnership,  unknown  to  the  common  law,  but 
now  recognized  by  statute  in  most  of  our  states.  It  is  similar 
to  the  Komrnandilgesellschajt  in  German  law  or  the  "com- 
mandite "  company  of  other  European  countries.  It  is  neither 
a  partnership  nor  an  ordinary  stock  corporation,  as  some  of 
the  members  are  liable  to  creditors  to  the  amount  of  their 
shares  only  and  have  no  voice  in  the  management,  whereas 
the  others,  the  partners,  who  have  exclusive  control  of  the 
operation  of  the  business,  are  Uable  in  solido  as  members  of 
an  ordinary  partnership. 

Benito'  in  1904  prepared  a  brief  lecture  or  conjereitcia  on 
the  different  forms  which  mercantile  associations  may  adopt. 
A  more  complete  treatise  on  the  subject,  including  private 
banks  and  the  national  bank,  was  published  in  1907  by 
Estasen.- 

RAILROADS   AND  PUBLIC   SERVICE  COMPANIES. 

The  business  of  carriers  and  the  conveyance  of  goods  and 
persons  by  land  is  largely  regulated  by  sections  349-379  of 
the  commercial  code.  vSections  184-192  deal  with  the  organi- 
zation and  financial  management  of  railroads  and  public  serv- 
ice companies.  The  carriage  of  postal,  telegraphic  or  tele- 
phonic correspondence,  of  declared  valuables  and  of  mer- 
chandise in  postal  packets  is  not  mercantile  according  to  the 
Spanish  law,  because  it  constitutes  a  public  service  monopo- 
lized by  the  State,  the  working  whereof  may  be  assigned  to 
individuals  under  certain  conditions.  These  are  regulated  by 
numerous  statutes  enacted  from  time  to  time  as  the  service 
demands. 

The  important  special  laws  for  railways  are:  the  general  law 
of  November  23,  1877;  the  railroad  police  regulation  of  the 
same  date;  the  regulations  for  the  application  of  both  laws 
dated  May  24  and  September  8,  1878.     This  railroad  police 

*  Benito  y  Endara,  Lorenzo.  Fortnas  que  pueden  adoptar  las  sociedades 
mercantiles.     Madrid,  Rev.  de  legislacion,  1904.     24  p. 

»  Estas^n,  Pedro.  Tratado  de  las  sociedades  mercantiles  y  dem4s  enti- 
dades  de  caracter  comercial  segiin  el  derecho  espanol.  Madrid,  Hijos 
de  Reus,  1907.     613  p. 


74  GUIDE   TO  THE   LAW   OF  SPAIN 

regulation  is  an  extensive  law  and  goes  into  minute  details  as 
to  the  regulations  for  the  deportment  of  passengers,  tickets, 
bills  of  lading,  running  of  trains,  etc.  The  latest  important 
railroad  law  was  passed  on  March  26,  1908,  on  secondary  rail- 
ways, followed  by  the  reglamento  for  its  application  Jan.  14, 
1909.  Translations  have  been  made  by  the  United  States  War 
Department  of  the  railroad  law  and  the  railroad  police  regula- 
tion as  extended  to  Cuba,'  Porto  Rico  ^  and  the  Philippines.^ 

There  are  several  collections  of  railway  legislation,  often 
combined  with  treatises  on  the  subject.  The  most  convenient 
and  complete  collection  of  the  railway  legislation,  including 
that  of  street  railways,  is  the  work  of  Mouton  *  pubUshed  in 
1908.  This  contains  the  general  law  of  1877,  the  police  regu- 
lation, all  the  statutes  to  1908,  and  the  relevant  sections  of 
the  code  of  commerce,  etc.  Each  section  is  annotated  with 
the  court  decisions  in  point.  The  work  of  Torino '  on  the 
railroad  legislation,  which  appeared  in  1902,  also  includes 
street  railways  {tranvias). 

An  extensive  encyclopedia  of  the  legislation  and  also  of  the 
practical  administration  of  railroads  in  their  legal,  technical, 
administrative,  and  commercial  aspects,  the  latest  edition 
bearing  date  1882,  was  compiled  by  Carets  ^  with  the  collab- 

'  Translation  of  the  law  of  railroads  for  the  island  of  Cuba,  and  regula- 
tions for  its  execution  with  additions  to  date  (1895).  By  U.  S. 
War  Dept.,  Washington,  Govemtnent  Printing  Office,  1899.     58  p. 

^  Translation  of  the  law  of  railroads  for  the  island  of  Porto  Rico.     Same, 
Washington,  Government  Printing  Office,  1899.     45  p. 
Same.     Police  law  of  railroads  and  regulations  for  its  application  pro- 
mulgated Feb.  17,  18S8.     Washington,  Government  Printing  Office, 
1899.     37  p. 

*  Translation  of  railroad  laws  and  regulations  for  the  Philippine  Islands 

...  to  Aug.  1900.     Washington,  Government  Printing  Office,  1900. 

Tip- 
Same.    Regulation  for  the  execution  of  the  police  law  of  railroads. 
Washington,  Government  Printing  Office,  1899.     27  p. 

*  Mouton  y  Ocampo,  Luis.     Doctrina,  legislacion  y  jurisprudencia  sobre 

ferrocarriles  y  tranvias  .  .  .  comentadas,  concordadas  y  anotadas. 
Madrid,  Rev.  de  legislacion,  1908.     559  p. 

'  Torino,  Jos6.  Legislacion  de  ferrocarriles  y  tranvias.  Concession  y 
construccion.    Madrid,  Hijos  de  J.  A.  Garcia,  1902.    961  p. 

«  Garces,  Benito  Vicente.  Diccionario  razonado,  legislativo  y  practico 
de  los  ferrocarriles  espafioles  bajo  el  especto  legal  tecnico,  adminis- 
trativo  y  comercial  de  los  mismos  con  la  colaboracion  de  Jos6  Gon- 
zalez Alvarez.  2d ed.  Madrid,  Indicador  de  los  Caminos  de  Hierro, 
1875-1882.     4V. 


COMMERCIAL  CODE  75 

oration  of  Gonzalez  Alvarez.  A  smaller  work  of  similar 
nature  is  the  Diccionario  of  Gonzalez  de  las  Cuevas  and 
Sastre  '  published  a  few  years  later.  A  complete  treatise  on 
railway  and  street  railway  law  decisions  has  been  published 
by  Foy^.-  The  body  of  the  work,  in  five  volumes,  was  pub- 
lished between  1894  and  1904,  and  si.x  appendices  carry  the 
work  through  1910.  The  organization  of  railroad  companies 
and  their  legal  character,  together  with  their  relations  with 
employees,  are  treated  of  in  a  work  by  Martin-Gamero.' 

A  manual  dealing  with  the  contract  of  transportation  was 
published  by  Foye ''  in  1886.  Bravo  Molto '  in  1891  pro- 
duced a  two  volume  treatise  on  the  legislation  of  communi- 
cation and  transportation  in  general.  The  laws  governing 
the  mail  are  discussed  in  a  work  by  Gutierrez."  A  history 
by  Verdegay '  of  the  corrco  (post)  from  its  origin,  with  an 
appendix  of  legislation  of  the  countries  which  form  the  uni- 
versal postal  union,  appeared  in  1 894. 

INSURANCE 

The  commercial  code,  in  sections  380-438,  deals  fully  with 
the  contract  of  insurance,  including  life,  fire,  land  transporta- 
tion, and  other  kinds  of  risks.  On  May  14,  1908,  a  law  was 
passed  for  the  registration  and  control  of  insurance  com- 
panies.    This  law  has  four  main  titles  and  some  additional 

'  Gonzalez  de  las  Cuevas,  Josfe  and  Sastre  y  Rodriguez,  F.  Diccionario 
general  de  ferrocarriles.  Piiblicado  bajo  la  direccion  de  Fernandez 
del  Rincon.     Madrid,  Minuesa,  1887.     747  p. 

^  Foy6,  R.  Los  caminos  de  liierra  de  Espana.  Recopilaci6n  ordenada 
de  las  disposiciones  legales  vigentes  .  .  .  construccion  y  explotacion, 
legislacion  y  jurisprudencia.  Barcelona,  Tasso,  1894-1904.  5  v. 
(6  app.  to  1911) 

'  Martin-Gamero,  Andres.  Constitucion  y  organizacion  de  las  com- 
panias  de  ferrocarriles  y  caracter  juridico,  condiciones  y  relaciones 
de  BUS  empleados.     Madrid,  los  Ferrocarriles,  1891.     306  p. 

*  Foy6,  R.     Manuel  del  contrato  de  transporte.     Barcelona,  Taso,  1886. 

368  p. 

*  Bravo     Molto,     Emilio.     Legislacion     de     comunicaciones.     Madrid, 

Nunez,  i8gi.     2  v. 
'Gutierrez,  Francisco  de  Asis.     Legislacion  de  correos.     Madrid,  Cuesta, 

1893.     214  p. 
Same.     Madrid,  Ambrosio  P^rez  y  Ca.,  1902.     207  p. 
"Verdegay  y  Fiscovvich,  Eduardo.  Historia  del  correo  .  .  .  con  un  apen- 

dice  que  comprcnde  la  legislacion  interior  de  los  paises  que  forman 

la  union  postal  universal.     Madrid,  Ricardo  Rojas,  1894.    475  p. 


76  GUIDE  TO  THE   LAW   OF   SPAIN 

provisions  for  its  application,  divided  as  follows:  I,  General 
provisions;  II,  Publicity  and  guarantees:  III,  Advisory  board 
and  inspection  of  insurances:  IV,  Liabilities.  A  provisional 
reglatnento  was  promulgated  by  royal  decree  July  26,  1908 
and  it  was  not  until  February  2,  1912  that  a  final  or  definite 
regulation  {reglamento  definitivo)  appeared.  This  rcglamento 
contains  187  sections.  The  Ilustracion  financiera  *  has  printed 
an  edition  of  the  Reglamento  definitivo  de  seguros  in  a  small 
pamphlet  of  129  pages.  There  appear  to  be  very  few  Spanish 
treatises  on  insurance ;  the  works  of  French  and  other  foreign 
authors  are  used  to  a  great  extent.  Estasen,^  in  1906,  pub- 
lished a  small  but  good  general  work  on  all  branches  of  in- 
surance law. 

The  Workmen's  Compensation  Act  of  January  30,  1900,  in 
article  12,  authorized  employers  to  transfer  their  liabilities 
to  injured  employees  to  insurance  companies  conforming  to 
certain  requirements.  Companies  insuring  against  risks  of 
accidents  to  workmen  sprang  into  existence.  The  royal  de- 
cree of  August  27,  1900  relating  to  these  companies  and  the 
reglamento  of  the  Workmen's  Compensation  Act  of  July  28, 
1900  contain  the  laws  governing  this  branch  of  insurance. 

BILLS   AND   NOTES 

A  complete  negotiable  instruments  law  is  given  in  the  code 
in  sections  443-566.  The  leading  treatise  on  the  subject 
is  the  work  of  Huguet,'  a  second  edition  of  which  appeared 
in  1 910.  The  bill  of  exchange  is  especially  emphasized, 
but  all  forms  of  negotiable  paper  are  included  in  the  work. 
Benito  ^  published  a  brief  monograph  on  the  subject  in  1906. 

The  aval  in  Spanish  law  constitutes  a  document  similar 
to  our  anomalous  indorsement,  although  it  may  also  be  made 


'  Reglamento  definitivo  de  seguros  para  aplicacion  de  la  ley  de  14  de 
mayo  de  1908  .  .  .  piiblicado  por  r.  d.  de  2  defebrero  de  1912.  Mad- 
rid, Ilustracion  financiera,  1912.     129  p. 

2  Estasto,  Pedro.  Los  seguros.  2d  ed.  Barcelona,  F.  Granda  y  Ca., 
1906.     300  p. 

^  Huguet  y  Compand,  Pedro.  La  letra  de  cambio  y  demas  documentos 
mercantiles  ...  2d  ed.  Barcelona,  Sucesores  de  Manuel  Soler, 
1910.     527  p. 

*  Benito,  Lorenzo.  La  letra  de  cambio.  Figureas,  Mariano  Alegret, 
1906.     17  p. 


COMMERCIAL   CODE  77 

restrictive.     Estascn  '  in   1902  published  an  article  on  this 
form  of  commercial  transaction. 

The  cheque  or  bank  check  has  received  individual  treatment 
in  the  work  of  Mora-  published  in  Havana.  This  book,  which 
is  a  prize  essay,  gives  the  law  of  foreign  countries  as  well  as 
of  vSpain. 

MARITIME   LAW 

Book  III  of  the  code  deals  with  maritime  commerce,  and 
the  whole  subject,  except  the  maritime  mortgage  {hipotcca 
naval),  is  practically  covered.  The  "Regulation  for  merchant 
navigation"  promulgated  by  the  Ministry  of  Marine  and 
approved  by  royal  order  of  January  i,  1885,  is  still  in  force 
in  regard  to  the  physical  management  of  vessels.  It  is  a  police 
regulation. 

Title  I  deals  with  the  vessel  and  its  parts  and  the  sale 
thereof,  voluntarily,  by  necessity,  or  judicially.  Title  II 
covers  the  regulations  and  laws  governing  all  persons  who 
take  part  in  maritime  commerce  as  owners,  masters,  officers 
and  crew,  and  supercargoes.  Special  contracts,  e.  g.,  affreight- 
ment, bottomry  and  insurance  are  treated  of  in  title  III. 
The  risks,  damages  and  accidents  of  maritime  commerce  includ- 
ing average,  calls  at  a  port  of  refuge,  collisions,  shipwrecks, 
etc.,  are  included  in  title  IV.  Title  V  deals  with  the  proof 
and  adjustment  of  average,  both  general  and  particular. 

The  maritime  laws  of  Spain  have  been  translated  into 
English  by  F.  W.  Raikes  ^  of  London.  The  work  is  annotated 
and  includes  a  translation  also  of  the  law  of  maritime  mort- 
gage. The  Spanish  commercial  maritime  law  has  been  dis- 
cussed briefly  in  French  and  compared  with  the  law  of  other 
continental  countries  by  two  writers,  Jacobs  and  Ouwerx.^ 

In  1888,  Agacinio  '  ptiblished  an  encyclopedia  of  the  mari- 
time legislationfrom  1854  to  1888.    Thefirst  volume  of  an  ency- 

iEstas6n,  Pedro.     El  aval.     Ensayo  juridico.     Barcelona,  F.  Granada 

y  Ca.,  1902.     44  p. 
^ Mora,  Federico.     Bel  cheque.     Habana.  Gobiema  y  Capitania  general, 

1885.     195  p. 
'Raikes,  F.W.    The  maritime  codes  of  Spain  and  Portugal.    Translation. 

London,  Effingham  Wilson,  1896.     212  p. 
*  Jacobs,  Victor  and  Ouwerx,  Lambert.     La  loi  espagnole  relative  au 

commerce  maritime.     Bruxelles,  F.  Larcicr,  1886.     138  p. 
'  Agacinio  y  Martinez,  Eugenio.     Diccionario  de  la  legislacion  maritima. 

Contiene  en  extracto  las  disposiciones  vigentes  .   .   .  desde   1854- 

1888.     Madrid,  liifauteria  de  Marina,   1S88.     505  p. 


78  GUIDE  TO  THE   LAW  OP   SPAIN 

clopedia  of  maritime  law  including  all  the  legislation,  decrees, 
etc. ,  arranged  in  alphabetical  order,  was  published  in  1908  by 
Parreno.'  A  good  treatise  on  maritime  law  is  the  production 
of  Godinez.-  A  short  treatise  on  towage  {remolque),  assist- 
ance and  salvage  was  published  in  191 1  by  Estasen,^  the 
author  of  numerous  works  on  commercial  law.  In  this 
work  he  includes  the  conventions  of  the  international  con- 
ferences of  maritime  law  at  Brussels  in  1905  and  in  1910. 

A  manual  of  the  legislation  on  the  merchant  marine,  by 
Ruiz,*  appeared  in  1904.  The  question  of  marine  jurisdiction 
and  the  laws  applicable  to  the  admiralty  courts  are  discussed 
in  a  treatise  by  Moreno.^  A  manual  of  the  admiralty  courts 
was  published  by  Gonzalez  Maroto  and  Tapia  "^  in  1903. 

The  maritime  mortgage,  hipoteca  naval,  is  dealt  with  in  a 
special  statute.  It  has  always  been  treated  as  distinct  from 
the  mortgage  of  other  kinds  of  property.  In  1888,  five  years 
before  the  present  statute,  Gongalez  Revilla '  published  a 
work  on  the  subject,  treating  comparatively  the  legislation 
of  other  countries.  The  same  author,  immediately  after  the 
passage  of  the  law  of  August  21,  1893,  issued  a  convenient 
manual  *  of  the  Spanish  law,  comparing  it  with  foreign  law. 
The  treatise  of  Ayllon  ^  on  commerce  and  the  naval  mortgage 

'  Parreno  y  Lopez,  Garcia.  Diccionario  de  derecho  maritimo.  Carta- 
gena, Soc.  Levantinade  artes  graficas,  igo8.     v.  i  (A-C).     761,  31  p. 

2  Godinez  y  Mihura,  Manuel.  Elementos  de  derecho  maritimo  espaiiol. 
Madrid,  Infanteria  de  Marina,  1892.     734  p. 

^  Estasen,  Pedro.  Cuestiones  de  derecho  maritimo.  Remolque, 
asistencia  y  salvamento.     Madrid,  Hijos  de  Reus,  191 1.     241  p. 

*  Ruiz  y  Gil,  Cristobal.  Manual  de  legislacion  del  marino  mercante. 
Madrid,  Miguel  Diaz,  1904.     235  p. 

'  Moreno  y  Lorenzo,  Joaquin.  La  jurisdiccion  de  marina.  Tratado  de 
todas  las  leyes,  etc.  de  constante  aplicaci6n  en  los  tribunales  de 
marina.     Madrid,  Hijos  de  F.  A.  Garcia,  1895.     1016  p. 

"  Gonzalez  Maroto,  Fernando,  and  Tapia  y  Casanovas,  Jose.  Manual  de 
los  tribunales  de   marina.     Madrid,   Ministerio   de   Marina,    1903, 

536  P- 
"  Gonzalez  Revilla,  Leopoldo.     La  hipoteca  naval  en  Espaiia.     Estudio 

de  legislacion  mercantil  comparada.     Madrid,  Infanteria  de  Marina, 

1888.     490  p. 
'Gonzalez  Revilla,  Leopoldo.     Manual  practico  de  la  hipoteca  naval, 

comentarios  y  texto  de  la  ley  de  21  de  agosto  dc  1893.     Madrid, 

Gongora,  1894.     344  P- 
"Ayllon  y  Altolaguirre,   Emilio.     El  comercio  y  la  hipoteca  naval. 

Madrid,  Rojas,  1893.     i  v. 


COMMERCIAL  CODE  79 

also  warrants  mention.  A  work  relating  to  the  maritime 
broker  which  contains  the  legislation,  but  is  otherwise  not 
very  useful,  was  published  in  1913  by  Arriaga.'  A  highly 
recommended  treatise  on  international  maratime  law  by 
Negrin  {infra,  v.  133)  appeared  in  a  second  edition  in  1888. 

CONSULAR   LAW 

Consular  legislation  bears  a  close  relation  to  maritime  law, 
as  consuls  in  foreign  ports  where  Spanish  vessels  arrive  are 
representatives  of  the  Spanish  State  for  all  the  purposes  of 
the  application  of  the  laws  which  relate  more  or  less  directly 
to  commerce  and  navigation,  an  exterritorial  privilege  which 
is  both  granted  and  limited  by  treaties.  It  is,  therefore, 
proper  to  give  an  indication  of  the  laws  by  which  the  consular 
body  is  controlled  in  these  matters.  The  subject  is  now  gov- 
erned by  the  organic  law  promulgated  by  royal  decree  April 
27,  1900,  which  was  completed  by  the  law  of  September  i, 
1906.  The  consular  jurisdiction  is  regulated  by  the  decree 
of  September  29,  1848.  In  addition  to  these  there  are  pro- 
visions in  the  commercial  and  civil  codes  and  many  decrees 
and  orders  of  lesser  importance.  The  most  recent  and  useful 
work  on  the  subject  is  that  by  Maluquer  -  which,  with  two 
appendices,  brings  the  law  down  to  1908.  A  third  appendix 
is  now  (1914)  in  course  of  publication. 

BANKRUPTCY 

The  Spanish  law  of  suspension  of  payment  and  bankruptcy 
is  given  in  book  four,  title  I,  of  the  commercial  code,  as 
amended  by  the  law  of  June  10,  1897.  This  law  drafted 
anew  sections  870-873,  inclusive,  on  suspension  of  payment, 
or  insolvency,  and  its  effects.  The  divisions  or  sections  of 
the  code  cover:  I,  suspension  of  payment  and  its  effects; — • 
II,  general  bankruptcy  provisions; — III,  the  kinds  of  bank- 
ruptcy and  the  rules  governing  creditors  and  persons  colluding 
or  aiding  in  fraudulent  bankruptcies; — IV,  composition  of 
bankrupts  with  their  creditors; — V,  rights  of  creditors  and 
their  clasification ; — VI,  discharge  of  the  bankrupt; — VII, 
general  provisions  relating  to  the  bankruptcy  of  mercantile 

'  Arriaga,  Emiliano  de.     El  libro  de  la  corrcduria  maritima.     Bilboa, 

Lerchundi,  1913.     360  p. 
'  Maluquer  y  Salvador,   Miguel.     Derecho   consular  cspanol.     Madrid, 

Hijos  de  Reus,  190S.     900  p.  and  2  app. 


8o  GUIDE   TO   THE   LAW   OF   SPAIN 

societies  in  general; — VIII,  suspension  of  payment,  bank- 
ruptcies of  companies,  and  undertakings  for  railroads  and 
other  public  works.  The  arrangements  with  creditors  by 
companies  which  are  concessionaires  of  public  works  are 
governed  by  the  law  of  April  9,  1904. 

It  is  important  to  notice  that  suspension  of  payment  is  a 
legal  institution  distinct  from  bankruptcy.  It  was  first  estab- 
lished by  the  commercial  code.  A  solvent  merchant  who  is 
in  possession  of  sufficient  assets  to  meet  all  his  debts,  but  fore- 
sees the  impossibility  of  doing  so  on  their  respective  due 
dates,  may  place  himself  in  a  state  of  "suspension  of  pay- 
ment" on  regular  application.  Thus  a  merchant  is  allowed 
to  satisfy  his  debts  before  the  danger  of  being  thrown  into 
bankruptcy  confronts  him. 

The  rules  of  procedure  in  bankruptcy  matters  are  included 
in  sections  1318-1396  of  the  code  of  civil  procedure.  In  the 
volume  on  Spain  of  the  "  Commercial  laws  of  the  world  "  {supra, 
p.  65),  American  edition,  these  rules  are  elaborated  and  ex- 
plained (pp.  71-83).  In  the  case  of  suspensions  of  payment, 
there  are  no  special  rules  of  procedure  either  in  the  code  of  civil 
procedure  of  1881  or  in  any  other  law,  except  that  which  re- 
lates to  the  arrangement  with  the  creditors  of  the  bankrupt. 
Thus  it  is  that  procedure  in  these  matters  is  governed  by  what 
the  judges  in  the  trial  and  appellate  courts  determine  in  each 
case  in  accordance  with  their  knowledge  and  understanding. 
In  sections  870-873  a  ' '  special ' '  law  for  procedure  in  suspension 
cases  is  referred  to,  but  no  such  law  has  yet  been  enacted. 

There  are  several  good  works  dealing  with  the  subject  of 
bankruptcy.  The  treatise  of  Estasen'  contains  a  valuable 
historical  introduction  of  136  pages  and  also  a  bibliography 
of  Spanish  and  foreign  works  dealing  exclusively  with  suspen- 
sion of  payment  and  bankruptcy.  The  second  edition  car- 
ries the  work  to  1909.  Another  work  to  be  recommended  is 
the  commentary  of  Nogucs  and  IMartorelP  on  book  four  of  the 

'  Estaste,  Pedro.  Tratado  de  las  suspensiones  de  pagos  y  de  las  quiebras. 
Estudio  te6ricx)-prdctico  ...  2d  ed.  Madrid,  Hijos  de  Reus,  1909. 
670  p. 

-  Nogu6s,  Emilio  Jos6  Maria,  and  Martorell  y  Rovira  de  Casellas,  Luis. 
Quiebras  y  suspensiones  de  pagos.  Comentarios  al  libro  del  codigo 
de  comercio  concordado  y  comparado  .  .  .  legislacion  .  .  .  de 
Europa.  3ded.  corr.  conarr.  alaleyde  lode  juniode  1897.  Madrid, 
La  Propaganda  universal,  1897.     605  p. 


COMMERCIAL   CODE  8 1 

code  of  commerce.  It  is  a  practical  sur\'ey  of  the  entire  Span- 
ish law  on  the  subject  and  draws  comparisons  with  the  laws  of 
other  European  countries.  A  two  volume  work  on  the  theory 
and  practice  of  the  law  governing  the  meeting  of  creditors 
and  bankruptcy  was  produced  in  1904  by  Rives,'  with  an 
introduction  by  Manresa.  A  handbook  of  procedure  in  bank- 
ruptcy, covering  other  nations  as  well  as  Spain,  was  published 
in  1898  by  Redondo.- 

Some  of  the  provisions  in  the  code  of  commerce,  especially 
in  regard  to  suspension  of  payment,  proved  highly  unsatis- 
factory. This  caused  numerous  criticisms  until  the  law  of 
June  10,  1897,  made  several  amendments.  A  commission, 
previous  to  1897,  had  been  named  by  the  National  Commercial 
Congress  for  the  purpose  of  revising  the  above  sections  of  the 
code.  The  dictamen  presented  by  Lastres'  before  the  Com- 
mission in  1893  is  of  interest  in  the  study  of  this  branch  of 
the  subject. 

LIMITATION   OF   ACTIONS 

Limitations  of  actions  or  prcscripciones  for  contracts  and 
claims,  both  ex  delicto  and  ex  contractu,  arising  in  mercantile 
transactions,  are  set  forth  in  articles  942-955,  under  two  titles 
of  book  four. 

COMMERCIAL  COURTS 

Prior  to  1829  commercial  causes  were  generally  heard  before 
consuls  and  not  in  the  regular  civil  courts.  By  the  code  of 
1829  the  consular  jurisdiction  disappeared  and  was  replaced 
by  the  Tribunals  of  Commerce  (likewise  composed  of  consuls) 
which  had  to  try  mercantile  causes  as  provided  in  article 
1 178  of  the  code.  Where  there  was  no  Tribunal  of  Commerce 
the  mercantile  jurisdiction  was  entrusted  to  ordinary  judges. 

■  Rives  y  Martf,  Francisco  de  P.  Teoria  y  prdctica  de  actuaciones 
judiciales  en  materia  de  concurso  de  acreedores  y  quiebras,  con 
sus  preliminares  quita  y  esperay  suspension  de  pagos.  2d  ed. 
Madrid,  Fortanet,  1904.     2  v. 

2  Redondo,  Remigio  Anton.  Quiebras.  Manual  sobre  el  precedimiento 
en  los  juicios  univcrsales  de  quiebras.  Madrid,  Sucesores  de  Alba, 
i8g6.     141  p.  (with  charts  and  forms.) 

^  Lastres,  Francisco.  Dictamen  de  la  comision  nombrada  por  el  con- 
greso  para  informar  la  proposicioii  de  ley  relativa  a  suspension  de 
pagos  y  quiebras  presentada  por  .  .  .  Madrid,  Hijos  de  J.  A.  Garcia, 
1893.     40  p. 

77231°— 15 6 


82  GUIDE   TO  THE   LAW   OF   SPAIN 

By  royal  decree  of  February  7,  1831,  commercial  courts  were 
established  at  all  the  important  cities  of  the  Peninsula.  These 
new  courts  did  not  give  the  results  expected  of  them  and 
many  abuses  were  committed  under  their  rule.  They  were 
abolished  by  the  law  of  December  6-8,  1868.  From  that 
date  there  has  been  no  difference  between  the  ordinary  and 
commercial  jurisdiction  in  Spain,  except  in  certain  provisions 
of  the  law  of  procedure  applying  only  to  mercantile  questions. 
Their  reestablishment,  however,  is  a  live  question  at  present. 
Lorenzo  Benito,"  in  an  article  published  in  1905,  asserts  that 
the  agitation  in  their  favor  is  merely  a  protest  against  the 
defects  in  the  administration  of  justice  which  are  felt  quickly 
when  they  affect  mercantile  interests.  Gomez  Chaix^in  1892 
published  some  notes  or  apuntes  on  the  commercial  courts 
and  their  establishment  in  Spain.  The  reestablishment  of  the 
courts  has  been  debated  considerably  in  the  National  Com- 
mercial Congress,  a  private  organization.  Arguments  on  both 
sides  are  printed  in  the  reports  of  the  congresses^  of  iS8i 
and  1886,  and  of  the  Congreso  juridico  cspaiiol  of  1886.* 

CHAMBERS   OF   COMMERCE 

On  the  initiative  of  Eduardo  Perez  Pujol,  a  professor 
in  the  University  of  Valencia,  there  was  created  in  Spain 
by  royal  decree  of  April  9,  1886,  an  institution  called  "Cham- 
bers (Cdtnaras)  of  commerce,  industry  and  navigation." 
This  institution  is  a  permanent  organization  with  separate 
associations  in  the  different  cities,  and  in  foreign  ports  where 
there  are  a  sufficient  number  of  Spaniards  engaged  in  mer- 
cantile pursuits  to  warrant  them.  Its  purpose  is  to  recom- 
mend, or  petition  for,  changes  in  the  laws,  encourage  commerce, 
settle  labor  disputes  when  chosen  as   arbitrators,  etc.     The 

'Benito,  Lorenzo.  Los  tribunales  de  comercio.  Barcelona,  "El  via- 
jante,"  1905.     32  p. 

^  Gomez  Chaix,  Pedro.  Apuntes  acerca  de  los  tribunales  de  comercio  y 
su  establecimiento  en  Espana.  Malaga,  Poch  y  Creixell,  1892. 
148  p. 

*  Actas  del  congreso  nacional  mercantil  de  noviembre-diciembre  de 
1881.     Tema  2d.     Madrid,  EI  porvenir  liberario,    1882.     381  p. 

Same.  De  mayo  de  1886  Tema  5°  and  1882  Madrid,  El  porvenir  libera- 
rio, 1887.     I    V. 

*Actas  del  congreso  juridico  cspanol  de  1886.  Tema  i2tli.  Madrid,  El 
porvenir  liberario,  1886.     i  v. 


CIVIL  PROCEDURE  83 

"Chambers"  by  law  must  necessarily  be  consulted  on  pro- 
posed treaties,  the  regulation  of  rates,  public  labor  contracts 
and  on  reforms  of  the  code  of  commerce  and  mercantile  pro- 
cedure. It  is  in  the  nature  of  a  board  of  trade  with  some 
of  the  powers  of  our  Interstate  Commerce  Commission. 
The  laws  which  now  regulate  the  Chambers  of  Commerce 
are  the  act  of  June  29,  191 1,  and  the  decree  of  December 
29,  1911.  For  a  discussion  of  these  cdmaras  a  brief  mono- 
graph or  lecture  by  Benito,'   published  in  1S99,  is  suggested. 

COMMERCIAI,   TRE.^TIES 

Treaties  have  little  effect  upon  the  commercial  rights  of 
foreigners  because,  by  virtue  of  the  provisions  of  article  14 
of  the  present  commercial  code,  foreigners  in  Spain  may 
carry  on  commerce  like  subjects  themselves,  without  any 
special  limitations  or  conditions.  Besides  this,  vSpain  has 
given  her  adherence  to  the  Universal  Conventions  on  Posts, 
Telegraphs  and  the  Protection  of  Trade  Marks  and  Patents. 
The  modem  commercial  treaties  of  Spain  may  be  found  in 
the  extensive  collection  of  Spanish  treaties  by  Olivart  {infra, 
p.  130).  The  commercial  treaties  concluded  between  the 
United  States  and  Spain  prior  to  1898  were  replaced  by  the 
general  treaty  of  July  3,  1902  (Malloy's  Treaties,  1910,  II, 
1701). 

CIVIL   PROCEDURE 

CODE    OF    CIVIL    PROCEDURE. 

Civil  procedure  in  Spain  is  governed  by  the  act  or  code  of 
civil  procedure  {ley  de  enjuiciamiento  civil)  of  February  3, 
1 88 1,  with  some  amendments,  and  the  judiciary  act  {ley 
orgdnica  sobre  el  poder  judicial)  of  September  15,  1870,  with 
its  supplementary  law  of  October  14,  1882.  Until  1855  civil 
procedure,  except  in  minor  cases,  was  practically  governed 
by  the  Parlidas  and  the  Novisima  recopilacion.  The  con- 
stitution of  1812  in  article  12  brought  about  some  reforms, 
and  a  few  important  statutes  were  later  enacted,  notably, 
the  provisional  regulation  for  the  administration  of  justice 
on  September  26,  1835,  and  the  law  in  regard  to  the  courts 
of  first  instance  on  May  i,  1844.  The  first  civil  procedure 
act  was  adopted  October  5,  1855,  and  was  extended  to  Cuba 

'  Benito,  Lorenzo.     Las  c4maras  de  comercio.    Madrid,  Rev.  de  legisla- 
ci6n,  1899.     Pamphlet. 


84  GUIDE   TO   THE   LAW  OF  SPAIN 

and  Porto  Rico,  December  9,  1865.  The  act  of  1855  was 
completely  revised  and  in  the  form  of  the  present  act  or  code 
was  again  promulgated  February  3,  1881.  An  important 
amendment  was  enacted  May  11,  1888,  and  others  have  fol- 
lowed from  time  to  time.  The  code  of  1881,  considerably 
modified,  was  extended  to  Cuba  and  Porto  Rico,  September 
25,  1885,  and  a  law  almost  identical  with  the  Cuban  law 
was  extended  to  the  Philippines,  February  3,  1888. 

Procedure  in  commercial  cases  is  governed  by  the  code 
of  civil  procedure  since  the  abolition  of  the  commercial 
courts  in  1868.  Only  in  the  voluntary  or  noncontentious 
jurisdiction  are  there  special  provisions  for  procedure  in 
commercial  matters.  There  is  no  separate  procedural  stat- 
ute for  bankruptcy,  as  the  code  fully  covers  the  subject. 
A  statute  bearing  a  close  relation  to  the  code  of  civil  pro- 
cedure is  the  law  of  November  12,  1869,  modified  by  the  law 
of  April  9,  1904,  on  insolvency  and  foreclosure  proceedings 
against  railway  and  other  public  service  companies.  The 
act  of  December  4,  1883,  amended  by  royal  decree  January 
7,  1884,  regulating  costs  in  courts  of  justice  and  notarial 
fees  {aranceles  jvdiciales  y  noiariales) ,  may  be  noted. 

The  code  of  civil  procedure,  having  been  enacted  before  the 
present  civil  code  was  adopted,  contains  in  some  instances 
conflicting  provisions,  and  in  others  lacks  the  corresponding 
provisions  of  the  civil  code,  as  in  the  case  of  the  family  coun- 
cil. In  form  it  is  complicated  and  somewhat  longer  than 
the  civil  code.  It  is  arranged  in  three  books,  which  together 
contain  2,182  articles.  Spanish  civil  procedure  is  divided 
into  two  divisions  or  jurisdictions,  according  to  the  general 
nature  of  the  action,  contentious  {contenciosa)  and  volun- 
tary or  noncontentious  (voluntaria).  Book  I  contains  pro- 
visions concerning  jurisdiction  and  procedure  common  to  all 
cases.  Book  II  covers  the  contentious  jurisdiction  which 
is  employed  in  actual  controversial  litigation.  Title  V  of 
book  II  provides  for  a  unique  arbitration  of  civil  suits  out  of 
court  (juicios  arbitral  y  dc  amigahlcs  componcdores),  a  Span- 
ish institution  which  has  proven  eminently  successful.  Book 
III,  which  is  devoted  to  voluntary  jurisdiction,  is  divided 
into  two  parts.  Part  one  covers  civil  cases  in  general,  and 
part  two  commercial  cases.  Voluntary  jurisdiction,  which 
corresponds  to  the  noncontentious  jurisdiction  of  Germany, 


CODE   OF   CIVIL  PROCEDURE  85 

France  and  other  European  countries,  is  employed  when, 
without  any  contest  between  the  parties,  judicial  interven- 
tion is  necessary  for  the  official  legal  authentication  of  certain 
acts,  e.  g.,  acts  in  the  nature  of  ex  parte  proceedings,  as  those 
for  adoption,  appointment  of  guardian,  administration  of 
estates,  etc. 

GENERAL   LITERATURE 

There  is  no  English  translation  of  the  Spanish  code  of  civil 
procedure,  but  the  code  of  Cuba  and  Porto  Rico  was  translated 
by  the  War  Department'  in  1901  and  reprinted  in  Laws  of 
Porto  Rico  (supra,  p.  48).  Convenient  editions  of  the  Spanish 
code  are  published  by  the  Revista  de  los  tribunales} 
The  eighth  edition  appeared  in  191 2.  The  code  also  appears 
in  Medina's  collection  {supra,  p.  48).  Rives,^  an  authority  on 
the  subject,  has  recently  (191 2)  published  what  is  considered  the 
most  important  annotated  edition  of  the  code,  including  the 
latest  related  statutes  and  the  relevant  judicial  decisions. 
The  code  of  Cuba  and  Porto  Rico  was  likewise  published  by 
the  Revista  de  los  tribunates.*  The  official  edition  of  the 
Philippine  code^  before  the  American  occupation  was  pub- 
lished in  1888. 

Two  excellent  commentaries  on  the  code  have  made  their 
appearance.  The  first  is  the  work  of  Manresa,"  which  contains 
an  exhaustive  treatment  of  every  section  of  the  law.  Three 
editions  have  appeared;  the  last,  in  i9io,was  edited  by  Rives 
who  has  changed  the  text  somewhat.     The  second  important 

'  Translation  of  the  law  of  civil  procedure  for  Cuba  and  Porto  Rico  with 
annotations,  etc.,  and  amendments  made  since  the  American  occu- 
pation. By  the  War  Department,  Division  of  Insular  Affairs. 
Washington,  Government  Printing  Office,  igoi.     544  p. 

^  Ley  de  enjuiciamiento  civil  de  3  de  febrero  de  1881  con  las  rcformas 
.  .  .  anotada  .  .  .  8th  ed.     Madrid,  Gongora,  1912.     855  p. 

^  Rives  y  Marti,  Francisco  de  P.  Ley  de  enjuiciamiento  civil  de  3  de 
febrero  de  1881,  acomodada  a  los  liltimos  textos,  etc.  .  .  .  con  notas 
y  la  jurisprudencia.     Madrid,  Hijos  de  Reus,  1912.     2  v. 

*  Ley  de  enjuiciamiento  civil  para  las  islas  de  Cuba  y  Puerto  Rico. 

Por  la  redaccion  de  la  Revista  de  los  tribunales.     3d  ed.     Madrid, 
Gongora,  i8g6.     731  p. 

*  Ley  de  enjuiciameinto  civil  para  las  Islas  Filipinas  y  demds  archi- 

pi^lagos  espanoles  de  Oceania.     Ed.  of  Madrid,  Ramon  Moreno  and 
Ricardo  Rojas,  1888.     556  p. 
^  Manresa  y  Navarro,  Jos6  Maria.     Coraentarios  &  la  ley  dc  enjuiciamiento 
civil.     3d  ed.     Madrid,  Hijos  de  Reus,  1910.     7  V. 


86  GUIDE  TO  THE   LAW   OF  SPAIN 

commentary  was  prepared  by  the  Revista  general  de 
legislacion  under  the  direction  of  Reus.'  Special  attention 
is  given  to  the  citation  of  the  relevant  decisions  of  the  Supreme 
Court.  This  work  has  appeared  in  its  second  edition.  A 
useful  work  for  the  practitioner  is  the  manual  by  Silvela  and 
Barrioberro."  It  is  divided  into  five  parts.  The  first  deals 
with  civil  procedure  and  contains  78  forms,  including  those 
for  every  possible  civil  action.  The  second  covers  criminal 
law,  and  suitable  forms  are  given.  The  third  takes  up  special 
jurisdictions,  as  trials  in  the  Senate,  miUtary  courts,  etc. 
The  fourth  discusses  ecclesiastical  courts,  while  the  fifth  con- 
tains general  comments  by  the  authors. 

Among  the  general  treatises  on  procedure  that  warrant 
mention  is  the  work  of  Lastres.^  This  also  includes  criminal 
and  ecclesiastical  procedure.  Another  treatise  of  even  more 
importance  is  that  of  Lopez-Moreno,''  which  includes  criminal 
law  and  is  annotated  with  the  laws  of  all  leading  European 
nations.  A  complete  treatise  covering  both  civil  and  criminal 
procedure  and  notarial  law  is  the  "practical  forensics"  of 
Miguel  Romero.'  Gutidrrez-Cafias 's  *  "Ensayo"  is  an  original 
and  fundamental  discussion  in  four  volumes  of  the  philosophy, 
technique  and  ethics  of  judicial  procedure. 

For  procedure  in  bankruptcy  and  suspensions  of  payment 
reference  may  be  made  to  the  work  of  Rives,'  the  second  edi- 
tion of  which  appeared  in  1904. 

•  Reus,  Emilio.     Ley  de  enjuiciamiento  civil  de  3  de  febrero  de  1881 

concordada  y  anotada  con  gran  extension  .  .  .  jurisprudencia  .  .  . 
por  la  redaccion  de  la  Revista  general  de  legislacion  y  jurispru- 
dencia ...     2d  ed.     Madrid,  Hijos  de  Reus,  1907-igio.     1-4,  6  v. 

'  Silvela  Loring,  Jorge  and  Barriobero  Armas,  Juan.  Manual  de  prdctica 
forense.     Madrid,  Hijos  de  Reus,  1905.     618  p. 

'  Lastres,  Francisco.  Procediraientos  civiles,  criminales,  canonicos  y 
contencioso-administrativos  .  .  .  seguidos  de  un  manual  de  formu- 
laries,    iithed.     Madrid,  V.  Suarez,  1902.     2  v. 

•  Lopez-Moreno,     Santiago.     Principios     fundamentales     del     procedi- 

miento  civil  y  criminal  .  .  .     Madrid,  V.  Suarez,  1901.     2  v. 
'  Miguel  y  Romero,   Maura.      Prictica    forense.     2d    ed.      Valladolid, 
Estacion,  1904.     2  v. 

•  Guti6rrez-Canas  Gutierrez,   Dcmetrio.     Ensayo   sobre  la  filosofia    del 

procedimiento  judicial,  la  t^cnica  y  la  moral  en  el  foro.     Valladolid, 
Nacional  y  Extranjero,  1900-05.     4  v. 
'Rives  y  Marti,   Francisco  de  P.     Teoria  y  practica    de    actuaciones 
judiciales  en  materia  de  concurso  de  acreedores  y  quiebras.     Prologo 
del  Josfe  Maria  Manresa  y  Navarro.     2d  ed.     Madrid,  Fortanet,  1904. 


JUDICIARY   ACT.  87 

JUDICIARY    ACT 

The  judiciary  act,  which  comprises  932  articles,  has  been 
supplemented  by  special  statutes.  The  most  important  is 
the  recent  law  of  municipal  justice  of  August  5,  1907.  Others 
worthy  of  mention  are  the  laws  of  April  5,  and  May  8,  1904, 
creating  a  special  chamber  of  the  High  Court  of  Justice  to 
take  jurisdiction  of  contentious  administrative  suits,  and  the 
law  of  jurisdictions  of  March  23,  1906.  The  act  in  amended 
form  was  extended  to  Cuba,  Porto  Rico,  and  the  Philippines, 
January  5,  1891. 

The  kingdom,  including  the  Balearic  and  Canary  Islands, 
is  divided  for  the  purpose  of  the  administration  of  justice 
into  municipal  lerminos,  partidos  and  distrilos.  On  the  civil 
side  three  grades  of  courts  are  provided  for:  (i)  courts  of  the 
first  instance  (juzgado  de  primera  instancia);  (2)  courts  of 
appeal  {audie-)icias  territoriales)  for  each  district;  and  (3)  the 
Supreme  Court  {Tribunal  Supremo),  located  at  Madrid.  It 
is  interesting  to  note  that  the  jury  is  only  employed  in  certain 
criminal,  but  not  in  civnl,  suits. 

The  contents  of  the  act  and  an  explanation  of  the  judicial 
system  in  Spain  and  of  the  laws  of  procedure,  especially  as 
regards  commercial  matters,  are  discussed  in  pages  34-86  of  the 
"Commercial  laws  of  the  world"  (supra,  p.  65).  The  various 
courts  and  the  judicial  system  of  the  Spanish  Monarchy  are 
briefly  described  in  volume  21  (1914)  of  Case  and  Comment,  at 
pages  547-550.  The  judiciary  act  as  extended  to  the  Ameri- 
can colonies  was  translated  in  1899  by  the  United  States  War 
Department.*  Several  supplementary  statutes,  likewise  trans- 
lated, are  appended.  The  judicial  organization  of  the  Philip- 
pines before  and  after  the  American  occupation,  with  references 
to  the  Spanish  system,  is  discussed  in  the  course  of  an  article 
on  the  administration  of  justice  in  the  Philippine  Islands  by 
the  Solicitor-General  of  the  Islands,  George  R.  Harvey,  in 
volume  nine  (19 14)  of  the  Illinois  Law  Review,  pages  73-97. 
Land  registration,  appointment  of  judges,  admission  to  the 
bar,  and  other  interesting  topics  are  included. 

'  Compilation  of  the  organic  provisions  of  the  administration  ot  justice 
in  force  in  the  Spanish  colonial  provinces  and  appendices  relating 
thereto.  Translated  by  the  U.  S.  War  Dept.  Washington,  Govern- 
ment Printing  Office,  1899.     170  p. 


88  GUIDE  TO  THE   LAW   OF   SPAIN 

Bravo  Molto '  in  his  two  volume  work  on  judicial  organi- 
zation includes  an  historical  account  of  the  courts  of  Spain. 
Sanchez  de  Ocaiia  ^  also  published  a  work  on  the  same  sub- 
ject, which  includes  a  copy  of  the  act  fully  annotated. 
Ugarte '  has  urged  some  reforms  in  the  administration  of 
justice,  which  he  has  embodied  in  his  work  (1906).  The  most 
recent  statute  affecting  the  judiciary  act,  the  law  of  August 
5,  1907,  on  municipal  courts,  has  received  full  treatment  in 
the  commentary  of  Rives'*  and  in  the  small  but  useful  manual 
edited  jointly  by  Rodriguez  and  Gutierrez  Jimenez.^  Judge 
Zaragoza  ^  of  the  court  of  first  instance  in  Madrid  edited  an 
annotated  text  of  the  law  in  1908  intended  as  a  practical 
guide  for  the  law  courts. 

When  private  rights  were  violated  by  official  acts  of  the 
administration  the  questions  of  claims,  or  the  litigation  arising 
therefrom,  were  tried,  from  September  18,  1888  to  1904,  in 
special  district  courts  with  a  separate  appeal  court  in  Madrid, 
the  Tribunal  centencioso-administrativo.  The  statute  of 
September  18,  1888,  was  amended  to  a  great  extent  by  the  law 
of  June  22,  1894,  in  regard  to  the  powers  and  jurisdiction  of 
this  court.  The  law  of  April  5,  1904,  abolished  the  court  and 
created  a  new  chamber  (sala)  of  the  Supreme  Court  to  exercise 
the  same  powers  and  fulfill  the  same  duties  under  the  statute 
of  1 894.  Caballero '  has  published  a  three  volume  work  on  the 
subject  of  cotitencioso-administrativo ,  or  the  law  governing  claims 
against  the  state,  but  the  work  has  not  attained  much  promi- 

'  Bravo  Molto,  Emilio.     Organizacion  judicial  vigente  con  una  intro- 

duccion  historica.     Madrid,  Nunez,  1890.     2  v. 
^  Sanchez  de   Ocaiia,   Ramon.     Organizacion  judicial   vigente.     Leyes 

orgdnicas  de  15  septiembre  1870  y  de  14  octubre  1882  anotadas  y 

concordadas.     Madrid,  Gongora,  1894.     800  p. 
'  Ugarte,  Janier.     Reformas  en  la  administracion  de  justicia.     Apuntes 

para  su  estudio.     Madrid,  V.  Suarez,  igo6.     237  p. 
*  Rives  y  Marti,  Francisco  de  P.     Ley  de  $  de  agosto  de  1907  reorgani- 

zando  la  administracion  de  justicia  en  los  juzgados  municipales, 

comentada  y  concordada  .   .  .  Madrid,  Hijos  de  Reus,  1909.     627  p. 
'  Rodriguez,  Antonio  G,,  and  Gutierrez  Jimenez,  M.     Justicia  munici- 
pal; manual  prSctico  para  la  aplicacion  de  la  ley  de  5  de  agosto  de 

1907.     Madrid,  J.  Palacios,  1908.     393  p. 
"  Zaragoza  y  Guijarro,  Jose.     Ley  de  justicia  municipal  .  .  .  annotada, 

etc.  .  .   .     Madrid,  Gaceta  de  Madrid,  1908.     298  p. 
'Caballero  y  Montes,  Jos6;.     Lo  contencioso-administrativo.     Zaragoza, 

Escar,  1902-1904.     3  v. 


NOTARIAL  LAW  89 

nence.  It  is  generally  conceded  by  critics  that  the  comment- 
ary of  Gonzalez  '  is  the  most  reliable  and  important  on  the 
subject.  Two  older  treatises  still  retain  enough  authority  to 
warrant  mention — one  by  Alfaro,-  published  in  1875,  and  the 
other  by  Gallostra,^  published  in  1881.  The  latter  *  also  pub- 
Ushed  a  brief  collection  of  the  judicial  decisions  (juris prudcncia) 
in  1867.  Attention  has  already  been  called  to  the  collections 
of  reports  of  decisions  and  digests  {supra,  p.  12). 

NOTARIAL   LAW 

Notarial  law  bears  a  close  relition  to  the  voluntary  juris- 
diction of  the  code  of  civil  procedure,  but  is  governed  bv  sepa- 
rate statutes.  It  is  of  far  more  importance  than  the  similar 
institution  of  Anglo-American  law,  and  the  practice  of  the  pro- 
fession of  notary  requires  long  training.  As  public  officials 
they  are  not  permitted  to  hold  other  governmental  positions 
and  are  governed,  as  the  lawyers,  by  a  College  of  Notaries 
(Colegio  de  notaries).  The  function  of  a  notary  is  to  execute 
and  certify  contracts  and  other  extrajudicial  instruments,  and 
to  protest  negotiable  paper.  They  are  required  to  keep  the 
original  documents  and  execute  copies.  Under  Spanish  law 
practically  all  deeds,  contracts,  and  agreements  of  importance 
must  be  certified  to  by  a  notary,  and  are  called  thereafter  in- 
strumentos  piiblicos. 

The  Spanish  notarial  law  was  promulgated  May  28,  1862. 
This  was  amended  by  the  addition  of  124  articles,  November  9, 
1874,  and  after  this  date  numerous  supplementary  statutes 
were  enacted.  The  law  in  modified  form  was  extended  to  Cuba 
and  Porto  Rico  on  October  29,  1873.  The  law  in  force  in  the 
Philippines  at  the  time  of  their  acquisition  by  the  United  States 
was  passed  February  15,  1889,  and  the  rules  governing  its  ap- 
plication followed  on  April  1 1 ,  1 890. 

'Gonzdlez,    Alfonso.     La    materia   contencioso-administrativa,    comen- 

tariod  lalegislacion  vigente,  jurisprudencia  ...  Madrid,  L.  Martinez, 

1903.     468  p. 
'^Alfaro  y  la  Fuente,  Santos.     Tratado  completo  de  lo  contencioso-ad- 

ministrativo.     Madrid,  Nicolas  Gonzalez,  1875.     642  p. 
'Gallostra  y  Frau,  Jos6.     Lo  contencioso-administrativo.     Madrid,  M. 

Tello,  1881.     618  p. 
■•Gallostra  y  Frau,  Jos6.     Jurisprudencia  del  Cousejo  de  Estado  sobre  la 

procediencia  de   las  demandas   administxativas.     Madrid,  Rev.  de 

legislacion,  1867.     88  p. 


90  GUIDE  TO   THE   LAW  OF  SPAIN 

The  notarial  laws  as  extended  to  Cuba  and  Porto  Rico  '  and 
those  in  force  in  the  Philippines  -  in  1899  were  translated  by 
the  War  Department  in  1899.  There  may  also  be  mentioned 
the  translation  of  the  general  instructions  ^  for  drafting  public 
documents  subject  to  record  in  the  Spanish  colonial  provinces, 
issued  in  1893. 

A  handy  collection  of  the  notarial  laws  of  Spain  was  pub- 
lished by  Medina  and  Maranon,^  whose  collections  in  other 
branches  of  the  law  have  been  frequently  referred  to.  A  guide 
to  the  notarial  system  of  Spain  by  Escosura  ^  appeared  in  1898. 
The  well  known  jurist  Costa*  published  a  work  in  1892  advo- 
cating the  reorganization  of  the  notarial  system,  the  registry  of 
property  and  the  administration  of  justice.  The  work  of 
Novoa  '  on  drafting  of  the  public  instruments  is  in  fact  a  com- 
plete treatise  of  the  art  and  science  of  the  notary.  A  useful 
and  practical  work  is  the  manual  of  Romero  *  for  the  drawing 
up  of  instruments  by  notaries,  which  also  includes  the  tariff  of 
fees,  the  stamp  law  and  the  regulations  governing  the  transfer 
of  real  and  personal  property.  This  work  has  been  spoken  of 
as  a  veritable  compendium  of  legal  information.  Possibly  a 
more  extensively  used  manual  for  the  drafting  of  public 
instruments  is  the  work  of  Zarzoso,"  the  sixth  edition  of  which 

'  Translation  of  the  notarial  laws  in  force  in  Cuba  and  Porto  Rico.  By 
U.  S.  War  Department.  Washington,  Government  Printing  Office, 
iSgg.     58  p. 

'The  notarial  laws  in  force  in  the  Philippine  Islands,  and  appendices 
relating  thereto.  Translation  by  U.  S.  War  Department.  Washing- 
ton, Government  Pringing  Office,  1899.     72  p. 

^  Translation  of  the  general  instructions  for  drafting  public  documents 
subject  to  record  in  the  Spanish  colonial  provinces.  By  U.  S.  War 
Dept.     Washington,  Government  Printing  Office,  1899.     19  p. 

*  Medina,   Leon  and   Maran6n,   Manuel.     Leyes  notariales  de  Espana 

conforme  a  los  textos  oficiales.     Madrid,  J.  Rueda,  1905.     430  p. 

*  Escosura,  Gabriel  de  la.     Guia  notarial  de  Espaiia  (piiblicado  por  r.  o. 

de  16  de  febrero  de  i8g8).     Madrid,  Piulo  y  Orovio,  1898.     Iv. 
°  Costa,    Joaquin.     Reorganizacion    del    notariado,    del   registro    de    la 

propiedad  y  de  la  administracion  de  justicia.     Madrid,   Rev.  de 

legislacion,  1890-1893.     347  p. 
'  Novoa  Seoane,  Ramon.     El   progreso    del    instrumento   publico.     2d 

ed.     Madrid,  Sue.  de  M.  Minuesa  de  los  Rios,  1910.     800  p. 
'  Romero  y  Delgado,  Arturo.     Manual  tcorico-practico  para  la  redacci6n 

de  los  instrumentos  piiblicos.     Madrid,  Hijos  de  Reus,  1909.     466  p. 
'  Zarzoso  y  Ventriva,   Esegual.     Teoria  y  prdctica  de  la  redacci6n  de 

instrumentos  piiblicos.     6th  ed.     Valencia,  Juan  Guit,  1900.     746  p. 


NOTARIAL  LAW  9I 

appeared  in  1900.  Torre  c  Izquierdo  '  has  produced  two 
works  of  merit — one,  his  "  Plxamplarium,"  being  simply  a  col- 
lection of  law  forms,  and  another  work,  a  commentary  upon 
the  legislation  governing  notaries. 

COSTS   AND   FEES. 

The  law  of  costs  is  naturally  associated  with  the  law  of  pro- 
cedure. The  law  on  this  subject  is  governed  by  the  statute  of 
December  4,  1883,  which  went  into  effect  January  i,  1884.  A 
few  changes  have  been  made  by  subsequent  statutes.  The 
oflficial  edition  of  the  law  can  be  obtained  from  the  Minister  of 
Grace  and  Justice.^  This  statute  contains  a  complete  list  of 
the  fees  for  proceedings  in  the  trial,  appeal  and  supreme  courts. 
Medina  and  Maranon  (supra,  p.  48)  include  it  in  their  collection 
and  have  annotated  the  different  sections  briefly. 

Before  leaving  the  subject  of  ci\-il  procedure  it  is  well  to  call 
attention  to  the  important  convention  of  July  17, 1905,  between 
Spain,  Germany,  Austria-Hungary,  France,  Italy,  and  most  of 
the  other  continental  countries.  The  convention  was  ratified 
by  the  signatory  powers  in  1909.^  By  \'irtue  of  this  agreement, 
service  in  any  of  these  countries  of  judicial  and  extra-judicial 
notices  and  process  coming  from  any  of  the  others  is  provided 
for.  The  consular  officers  transmit  the  service  and  notice  is 
served  by  local  officers.  Proof  of  service  is  returned  in  the 
same  way.  In  civil  and  commercial  matters  letters  rogatory 
may  be  issued  by  the  judicial  authority  of  one  country  to  that 
of  another,  requesting  the  performance  of  any  judicial  act  or  the 
taking  of  testimony.  The  request  must  be  complied  with  and 
carried  out  by  all  the  usual  coercive  means  of  compelling  obedi- 
ence to  domestic  writs.  A  citizen  of  one  country,  if  sued  or 
suing  in  another  country,  need  not  give  security  for  costs  or 

'Torre  k.  Izquierdo,  Tirso   de  la.     Exemplarium.     Valencia,   M.    Pan, 
1907-S.     2  V. 
Same.     Comentarios  d  la  legislacion  notarial.     Valencia,  M.  Pan,  1904. 

390  P- 
^  Aranceles  judiciales  para  los  negocios  civiles,  aprobados  por  r.  d.  de  4  de 

diciembre    de    1883.     Madrid,    Ministerio    de    Gracia    y    Justicia, 

1883.      I  V. 
Same.     In  effect  Feb.  i,  i8g8.     Madrid,  Tomas  Jordan,  1897.     49  p. 
*  See  36  Clunet,  1909,  pp.  853-865  and  41  Clunet,  1914,  p.  881. 


92  GXJIDE  TO  THE   LAW  OP  SPAIN 

judgment  merely  because  he  is  a  foreigner  or  domiciled  in  a 
foreign  country.  Other  restrictions  usually  in  force  against 
foreign  litigants  are  abolished. 

CRIMINAL  LAW. 

The  ancient  codes  of  Spain  had  many  sections  devoted  to 
criminal  law.  The  Sicte  partidas  contained  the  most  com- 
plete and  elaborate  provisions,  and  the  Ntieva  recopilacion 
and  the  Novisima  recopilacion,  which  followed,  merely  repeated 
in  detail  the  rules  there  laid  down.  Besides  the  treatment  of 
the  subject  to  be  found  in  the  general  historical  works  men- 
tioned {supra,  p.  36  et  seq.),  one  of  the  older  legal  historians 
Gutierrez  Femdndez'  published  in  1866  a  useful  historical  ac- 
count of  criminal  law.  Du  Boys'  ^  French  treatise,  which  traces 
the  history  from  earliest  times  to  the  middle  of  the  eighteenth 
century,  was  translated  into  Spanish  in  1872  by  Vicente,  who 
added  a  few  new  annotations  and  appendices.  The  work, 
from  a  historical  standpoint,  has  been  adversely  criticized. 
Prof.  Von  Thot  discussed  at  some  length  the  history  of  the 
Spanish  literature  on  criminal  law  in  his  article  (pp.  356-377) 
in  the  Gerichtssal,  191 2. 

The  progress  of  civilization  and  the  growth  of  modern  ideas 
of  justice  at  the  beginning  of  the  nineteenth  century  rendered 
the  criminal  laws,  because  of  their  cruelty  and  harshness,  out 
of  harmony  with  the  times.  Reforms  were  begun  as  early  as 
181 2  in  the  constitutional  Cortes  of  Cadiz.  The  first  penal 
code  was  promulgated  in  1822  and  a  second  followed  in  1848. 
The  constitution  of  1869  contained  provisions  conflicting  with 
the  existing  penal  laws,  especially  those  relating  to  personal 
rights,  the  free  exercise  of  religious  worship,  punishments  for 
various  crimes  committed  by  one  person,  perpetual  punish- 
ments, the  argolla,  etc.  It  became  necessary  therefore  to 
publish  a  new  code. 

The  present  code,  which  made  but  few  important  changes 
in  the  code  of  1848,  was  authorized  by  the  act  of  June  17,  1870, 

'Gutierrez  Fernandez,  Bentio.     Eximen  historico  del  derecho  penal. 

Madrid,  Penuelas,  1866.     478  p. 
2  Du  Boys,  Albert.     Histoire  du  droit  criminel  de  I'Espagne.     Paris, 

Durand  et  Pedone-Lauriel,  1870.     732  p. 
Version  al  castellano  .  .  .  con  ap^ndiccs  por  Jose  Vicente  y  Caravantes. 

Madrid,  Jos6  M'Penier,  1872.     568  p. 


CRIMINAL   LAW  93 

and  went  into  effect  August  30  of  the  same  year.  Modifica- 
tions of  many  articles  were  effected  by  the  statutes  of  July  17, 
1876,  January  i,  1900,  April  9,  1900,  July  21,  1904,  January  3, 
1907,  and  January  3,  1908.  In  addition  there  have  been 
enacted  several  more  or  less  important  laws  for  special  crimes. 
The  code,  considerably  modified,  was  extended  to  Cuba  and 
Porto  Kico  May  23,  1879,  and  to  the  Philippines  September  4, 
1884,  although  it  did  not  go  into  effect  there  until  December 
17,  1886. 

Offenses  in  Spain  are  divided  according  to  their  nature  into 
felonies,  crimes  {delitos),  and  misdemeanors  (jaltas).  The 
division  of  breaches  of  the  law  into  those  mala  in  se  and  mala 
prohibila  does  not  exist.  Following  the  first  distinction  the 
penal  code,  which  consists  of  626  articles,  is  divided  into  three 
books.  Book  I  contains  general  provisions  applicable  to  both 
delitos  and  jaltas,  such  as  the  extenuation  and  aggravation  of 
offenses,  persons  responsible,  etc.  Book  II  covers  delitos  and 
the  penalties  therefor,  while  /a/tov  are  covered  by  book  III. 

The  code  of  Cuba  and  Porto  Rico  was  translated  into  Eng- 
lish in  1898  by  a  committee'  of  seven  lawyers  drawn  from 
the  bar  of  Havana.  The  translators  state  that  the  work  was 
done  hastily  and  is  only  substantially  correct.  A  few  brief 
notes  are  appended.  A  translation  of  this  code  ^  as  well  as 
of  the  penal  code  of  the  Philippines  ^  was  made  by  the  War 
Department,  in  1900.  Beyond  these  there  are  no  English 
translations  of  the  Spanish  code  although  the  Comparative 
Law  Bureau  of  the  American  Bar  Association  announces 
that  S.  P.  Scott  has  prepared  for  it  a  translation  which  is 
already  in  type  (1914).  A  German  translation  was  pub- 
lished in  1909  by  Hart  wig.''  In  a  brief  article  in  the  An- 
nual Bulletin  of  the  Comparative  Law  Bureau  (1910), 
pages  62-80,  S.  P.  Scott  compared  Spanish  criminal  law  with 

'  The  penal  code  of  tlie  islands  of  Cuba  and  Porto  Rico.     Translated  into 

English   with  explanatory  notes  by  seven   lawyers.     Havana,  La 

propaganda  litcraria,  1898.     145  p. 
^Translation  of  the  penal  code  in  force  in  Cuba  and  Porto  Rico.     By 

U.  S.  War  Department,  Washington,  Government  Printing  Office, 

1900.     175  p. 
^  Same.     Philippines.     Washington,  Goveninient  Printing  Office,  1900. 

iSSP- 
*  Spanisches  strafgesetzbuch.     Translation  by  Alfredo  Hartwig.     Berlin, 
J.  Gnttentag,  1909.     127  p. 


94  GUIDE  TO  THE   hAW   OF  SPAIN 

Anglo-Saxon  law.  The  writer  describes  the  contents  of  the 
penal  code  and  compares  the  conduct  of  criminal  trials  with 
our  common-law  procedure.  The  theory  of  the  Spanish  penal 
code  was  compared  with  the  French  legislation  in  a  work  by 
Louis  and  Valdeson  Laget/  published  in  1881. 

The  official  edition  ^  of  the  code  as  promulgated  in  1 870 
is  in  print,  as  well  as  the  official  code'  of  Cuba  and  Porto  Rico. 
Bravo  ^  has  published  the  Code  as  extended  to  the  Philippines. 
A  useful  and  well  recommended  edition  of  the  Spanish  code 
is  contained  in  the  collection  of  the  penal  laws  by  Medina  and 
Maranon.'  This  work  contains  the  texts  of  the  constitution 
of  the  Spanish  monarchy,  the  penal  code,  the  code  of  criminal 
procedure,  the  jury  law,  the  military  and  maritime  penal  codes 
and  all  the  relevant  statutes  to  1909.  The  different  sections 
of  the  code  as  affected  by  the  amendatory  laws  are  printed  in 
their  latest  revision,  and  are  annotated  with  the  important 
decisions  of  the  Supreme  Court.  A  good  digest  or  dictionary 
of  all  the  penal  legislation,  including  procedure,  has  been  edited 
by  Cadalso."  The  subject  matter  is  arranged  under  different 
topics  in  alphabetical  order.  A  supplementary  volume  ex- 
tends the  work  to  1908. 

Reports  of  judicial  decisions  in  criminal  matters  have  been 
published  separately  since  1874.  There  is  no  complete  digest 
of  these  although  several  fragmentary  ones  exist.     Attention 

'  Laget,  Louis,  and  Laget,  Valdeson.     Theorie  du  code  p6nal  espagnol, 

comparee  avec  la  legislation  franfaise.     2d  ed.     Paris,  Marchal  and 

Billard,  1881.     527  p. 
^  Codigo  penal  reformado,  mandadopublicarse  .  .  .  por  ley  de  1 7  de  junio 

de  1870.     Madrid,  Ministerio  de  Gracia  y  Justicia,  1870.     i  v. 
Same.     Con  notas  y  los  discursos  pronunciados  en  las  Cortes  consti- 

tuyentes  .  .  .   ;  seguido  de  vn  apendice  .  .  .  leyes  sobre  casacion 

criminal,  reforma    del   procedimiento   criminal.     Madrid,   Rev.  de 

legislacion,  1870.     310  p. 
^  Codigo  penal  para  los  provincios  de  Cuba  y  Puerto  Rico.     Madrid, 

Nacional,  1879.     179  p. 

*  Bravo,  Julio.     Codigo  penal  vigente  en  las  islas  Filipinas  (4  de  setiem- 

bre  de  1884).     Madrid,  Nunez,  1887.     276  p. 
'Medina,  Leon,  and  Maranun,  Manuel.     Leyes  penales  de  Espana  con- 
forraa  i  los  textos  oficiales.     Madrid,  Viuda  €  Hijos  de  Tello,  1909. 
1,480  p. 

•  Cadalso  y  Manzano,  Fernando.     Diccionario  de  legislacion  penal,  pro- 

cesal  y  de  prisiones.     Madrid,  J.  Gongora  y  Alvarez,  1896.     3  v.  with 
suppl.  101909.     1,022  p. 


CRIMINAL   LAW  95 

has  been  called  to  the  criminal  law  reports  and  the  digests 
under  the  heading  of  court  reports  {supra,  p.  12).  In  thiy 
connection,  mention  may  be  made  of  the  edition  of  the  penal 
code  by  Hidalgo  Garcia,'  published  in  1908.  All  the  deci- 
cions  rendered  up  to  1908  in  interpretation  of  the  various  arti- 
cles of  the  penal  code  are  arranged  and  classified  in  a  clear 
and  convenient  manner,  and  the  work  enjoys  considerable 
reputation.  A  learned  introduction  by  the  distinguished 
criminologist,  Bernaldo  de  Quiros,  is  also  included. 

There  are  several  commentaries  on  the  penal  code.  A  lead- 
ing work  for  practical  reference  use  is  that  of  distinguished 
jurist  Groizard,^  who  has  served  as  a  member  of  the  general 
commission  of  codification  and  is  an  ex-minister  of  state,  etc. 
The  commentary  in  form  is  somewhat  tedious  and  prolix. 
The  work  of  Viada  ^  of  Madrid,  of  equal  rank  and  authority, 
is  used  to  supplement  Groizard's  commentary.  It  is  especially 
recommended  for  its  examination  and  correlation  of  the  rele- 
vant decisions  of  the  Supreme  Court.  Supplements  carry  the 
work  to  191 1.  An  older  commentary,  which  was  the  leading 
authority  prior  to  the  revision  of  the  code  in  1870,  is  that  by 
Pacheco,*  the  fiscal  or  solicitor  for  the  state  in  the  Supreme 
Court.  The  work  has  been  revised  in  two  editions  subse- 
quent to  the  promulgation  of  the  present  code,  so  that  it  still 
has  some  value. 

Few  general  treatises  of  merit  on  the  subject  of  criminal  law 
exist.  The  leading  work  is  Silvela's,^  of  which  a  second  edi- 
tion was  published  by  his  son,  in   1903,  with  the  necessary 

•  Hidalgo  Garcia,  Antonio.     El   codigo   penal  conforme  a  la  doctrina 

establecida  por  el  tribunal  supremo  .  .  .  de  Madrid,  Rev.  de  leg- 

islacion,  1908.     2  v. 
^  Groizard  y  Gomez  de  la  Sema,  Alejandro.     El  codigo  penal  de  1870 

concordado  y  comentado.     Salamanca,  Esteban-Hermanos,   1897- 

1899.    8  V. 
'  Viada  y  Vilaseca,  Salvador.     Codigo  penal  reformado  de  1870  con  las 

variaciones  iiitroducidas  en  el  mismo,  coacordado  y  comentado  .  .  . 

seguido  de  un  .  .  .  repertorio  de  jurisprudencia  y  apendice  con  las 

leyes  pcnalcs    .  .  .  4tli  ed.     Madrid,  Fernando  F6,  1890-1911.     4  V. 

and  5  supp. 

*  Pacheco,  Joaquin  Francisco.     El  c6digo  penal  concordado  y  comentado. 

6th  ed.     Madrid,  Manuel  Tello,  1888.     3  V. 
'  Silvela,    Luis.     El  derecho  penal.     Estudiado  en  principios  y  en  la 
legislacion  vigente  en   Espaiia.     2d  ed.     Madrid,  Ricardo  Fe,  1903. 
2  V. 


96  GUIDE  TO  THE  LAW   OF  SPAIN 

changes  required  by  time  and  references  to  modern  theories. 
Prof.  Dorado '  of  the  University  of  Salamanca,  probably 
the  greatest  of  contemporary  specialists  in  penal  law  in  Spain, 
has  published  a  theoretical  treatise  covering  the  sources  of 
criminal  law,  the  interpretation  of  the  statutes  and  related 
matters.  The  author  originally  intended  this  to  be  one  vol- 
ume of  a  larger  work,  but  his  plans  did  not  materialize.  The 
treatise  used  in  the  law  school  of  the  University  of  Madrid  is 
that  of  Prof.  Valdes  Rubio.^  The  work,  although  severely 
criticized  by  the  profession  and  teachers  of  law,  is  now  (1914) 
appearing  in  its  fifth  edition.  It  is  principally  of  value  for  the 
legislation  cited.  The  first  volume  of  a  recent  (191 3-14) 
treatise  by  Rovira '  has  appeared,  but  this  work  has  Ukewise 
been  adversely  criticised. 

To  fill  the  need  of  a  good  treatise  on  criminal  law  some  law 
schools  have  adopted  a  translation  of  Pessina's  *  well-known 
Italian  work  annotated  with  Spanish  notes,  legislation,  judicial 
decisions,  etc.  The  translation  is  likewise  used  by  the  profes- 
sion in  general.  The  latest  and  best  edition  of  Pessina  is  that 
of  Prof.  Cuello  of  the  University  of  Barcelona,  issued  in  1913. 
This  is  but  one  example  of  the  frequent  employment  in  Spain 
of  foreign  law  books. 

A  unique  and  interesting  work  is  the  monograph  of  Langle 
Rubio'  on  woman  in  criminal  law.  The  crimes  by  and  against 
women  are  discussed  briefly,  as  well  as  woman's  general  position 
in  criminal  law ;  considerable  space  is  devoted  to  the  desertion 
of  children  which,  since  the  Middle  Ages,  has  been  one  of  the 
crying  sins  of  the  country,  and  has  multiplied  the  number  of 
foundling  hospitals  to  an  incredible  extent. 

'  Dorado,  Pedro.    Probletuasde  dereclio  penal,    aded.    Madrid,  Rev.  de 

legislacion,  1895.     469  p. 
^  Valdes   Rubio,  Jose  M.     Derecho  penal,    sth  ed.     Madrid,  Asilo  de 

Huerfanos  de  S.  C.  de  Jesus,  1913.     v.  i  (2  additional  vols,  will  appear 

in  1915). 
^  RoviraCarrero,  P.  I.     Curso  de  derecho  penal.     Madrid,  Rev.  de  legis- 

laci6n,  1913.     v.  i.     (Others  in  publication.) 
*  Pessina,    Enrique.     Elementos   de    derecho   penal.     Traducci6n    por 

Eugenio  Cuello.     Madrid,  Hijos  de  Reus,  1913.     940  p. 
^  Langle  Rubio,  Emilio.     La  mujer  en  el  derecho  penal.     Madrid,  Hijos 

de  Reus,  1911.     124  p. 


CRIMINAL  PROCEDURE  97 

CRIMINAL   PROCEDURE. 

The  system  of  criminal  procedure  which  prevailed  in  Spain 
under  the  ancient  codes  and  until  modem  times  was  the  secret 
and  written  procedure,  the  hampered  defense,  and  torture. 
This  system  was  renounced  and  the  accusatory  system  adopted 
in  the  reforms  instituted  by  the  code  (act)  of  1882.  The 
present  code,  or  act,  was  promulgated  September  14, 1882,  and 
has  had  comparatively  few  amendments.  Article  954,  in  re- 
gard to  appeal,  was  modified  by  a  statute  enacted  August  7, 
1899,  which  expressly  allowed  to  the  heirs  the  civil  remedies 
for  conviction  by  false  testimony.  The  code  of  1882 — some- 
what altered — was  extended  to  Cuba  and  Porto  Rico  on  Octo- 
ber 19,  1888,  and  became  effective  January  i,  1889.  This  code 
has  been  amended  in  important  particulars.  The  extension  of 
the  code  to  the  Philippines,  in  slightly  modified  form,  occurred 
in  1884,  but  it  did  not  go  into  effect  there  until  1888. 

There  are  several  special  statutes  that  bear  directly  upon  the 
law  of  criminal  procedure.  The  judiciary  act  (supra,  p.  87)  is 
naturally  the  most  important,  as  the  entire  judicial  system  was 
organized  and  is  governed  by  it.  The  law  of  April  20,  1888, 
reestablishing  the  use  of  the  jury  in  criminal  trials  is  also  im- 
portant. This  subject  will  be  discussed  more  at  length  pres- 
ently. The  respective  jurisdictions  and  powers  of  the  admin- 
istrative authorities  and  the  judicial  courts  in  criminal  matters 
are  defined  by  the  royal  decree  of  September  8, 1887.  A  special 
law  reforming  both  the  penal  and  procedural  provisions  con- 
cerning smuggling  and  violations  of  the  tariff  law  was  enacted 
September  3,  1904.  This  law  is  rather  extensive,  embracing 
128  articles. 

The  law  of  criminal  procedure  now  in  force  contains  998 
articles  and  a  final  provision,  classified  under  seven  divisions 
or  books.  Book  one  deals  with  general  provisions,  jurisdic- 
tion of  courts  geographically  and  by  degree  of  crimes,  rights 
of  challenge,  prosecution  and  defense,  procedure,  exceptions, 
decisions  as  to  matters  of  form,  jurisdiction,  sentences,  sum- 
mons, communications  between  courts,  appeals  and  costs. 
Book  two  considers  the  sumario,  or  preliminary  investigation, 
corresponding  to  that  of  a  grand  jury.  Book  three  takes  up 
public  and  oral  trials.     Special  proceedings  and  extradition, 

77231° — 15 7 


98  GUIDE  TO  THE   LAW   OF   SPAIN 

appeals  and  reviews,  prosecution  of  falias,  or  misdemeanors, 
and  the  execution  of  sentences  are  treated  of  successively  in 
books  four,  five,  six  and  seven. 

A  complete  analysis  of  the  code  of  criminal  procedure  was 
made  soon  after  its  promulgation  by  a  French  lawyer,  Theur- 
ault,  in  the  twelfth  volume  of  Annuaire  de  legislation  clranghre 
(1882),  pages  693-720.  He  discusses  each  section  and  sum- 
marizes its  contents.  Verdier  and  Depieges '  made  a  trans- 
lation of  the  code  in  1898  under  the  authority  of  the  French 
government,  which  has  caused  many  of  the  important  foreign 
codes  to  be  translated  for  the  benefit  of  its  own  lawmakers. 
The  code  as  in  force  in  Cuba  and  Porto  Rico  is  included  in  the 
translations  made  by  the  War  Department  {supra,  p.  48) ,  and 
was  also  published  ^  separately  with  the  text  in  Spanish  added. 

The  text  of  the  code  of  criminal  procedure  is  often  included 
in  the  same  volume  with  the  penal  code,  and  sometimes  with 
the  code  of  civil  procedure  under  the  head  of  procedural  laws. 
The  Revista  de  legislacidn  ^  published  an  annotated  edition  of 
the  code  of  criminal  procedure,  soon  after  its  promulgation, 
in  two  volumes.  The  required  forms  for  pleading  are  given. 
A  recent  edition  of  the  code  is  printed  in  the  collection  of  crimi- 
nal laws  by  Medina  and  Maranon  {supra,  p.  94).  Amat  ■*  in 
1903  published  a  small  annotated  edition  of  the  code.  The 
Revista  de  los  irihunales  issues  newly  annotated  editions  from 
time  to  time. 

The  court  decisions  on  criminal  procedure,  from  the  pro- 
mulgation of  the  present  code  until  1893,  have  been  collected 
and  digested  in  the  form  of  a  manual  or  handbook  by  a  law 
writer  who  signs   his  name  R.  D.  V.°     Attention  may  also 

'  Code  de  procedure  criminelle  cspagnol  (14  septembre  1882).  Traduit 
et  annot6  par  Gabriel  Verdier  and  Joseph  Depieges.  Paris,  Iinpr. 
nationale,  1898.     404  p. 

^  Translation  of  the  law  of  criminal  procedure  for  Cuba  and  Porto  Rico 
(with  Spanish  text)  with  annotations  ...  By  U.  S.  War  Depart- 
ment, Washington,  Government  Printing  Office,  igoi.     393  p. 

'  Ley  de  enjuiciamiento  criminal  de  14  de  septiembre  de  1882,  con- 
corda  y  anotada  .  .  .  por  la  redaccion  de  la  Revista  general  de 
legislaci6n  y  jurisprudencia  .  .  .  Madrid,  Hijos  de  Reus,  1883- 
1884.     2  V. 

*  Amat,  Vicente.  Ley  de  enjuiciamiento  criminal  coraentada  y  anotada 
.  .  .     Barcelona,  Sopena,  1903.     395  p. 

'  R.  D.  V.  Manual  de  jurisprudencia  procesal  en  niateria  criminal  (1882- 
1893).     Madrid,  G6ngora,  1894.     i  v. 


CRIMINAL   PROCEDURE  99 

be  called  to  the  work  of  Herrero  Martinez*  on  criminal 
procedure  in  all  Spanish  courts  from  the  lowest  municipal 
court  to  the  Supreme  Court  at  Madrid.  It  is  practically  an 
exhaustive  digest  of  decisions  of  the  court  of  last  resorts  on 
the  most  important  points  of  criminal  law.  Appended  to 
nearly  every  article  is  a  series  of  questions  which  are  answered 
by  citations  of,  or  references  to,  decisions  on  the  matters  in 
question.     The  work  contains  no  forms. 

A  valuable  contribution  to  the  literature  of  criminal  proce- 
dure is  the  commentary  recently  commenced,  but  only  partially 
completed,  by  Aguilera  de  Paz.^  The  commentator  is  a  judge 
of  one  of  the  appeal  courts  and  an  author  of  several  important 
legal  works.  The  commentary  is  to  encompass  five  volumes 
when  completed,  but  at  present  (1914)  only  three  have 
appeared. 

In  the  recent  English  translation  of  Esmein's'  history  of 
continental  criminal  procedure,  published  as  one  of  the  Conti- 
nental legal  history  series,  a  few  pages  (295-301,  584-585)  are 
devoted  to  Spain. 

Treatises  on  criminal  procedure  have  been  often  combined 
with  treatises  on  civil  procedure,  notably  in  the  works  of 
Lastres  {supra,  p.  86)  and  Lopez-Moreno  (supra,  p.  86).  The 
complete  and  useful  manual  of  Silvela  and  Barrioberro  (supra, 
p.  86)  also  includes  criminal  law.  Soon  after  the  promulga- 
tion of  the  code  of  criminal  procedure,  in  1882,  several  treatises 
were  published  explanatory  of  the  new  law.  Among  those 
that  warrant  mention  are  the  works  of  Marfd,*  and  of  Armas  ^ 
in  collaboration  with  Dominguez-Alfonso.     A  brief  work  on 


'  Herrero  Martinez,  Mariano.  Ley  de  enjuiciamiento  criminal  reformada. 
Valladolid,  Castellana,  1909.     846  p. 

"  Aguilera  de  Paz,  Enrique.  Comentarios  a  la  ley  de  enjuiciamiento 
criminal.     Madrid,  Hijos  de  Reus,  1913.     3  v.  and  cont. 

3  The  Continental  legal  history  series.  A  history  of  continental  criminal 
procedure  witli  special  reference  to  France.  By  A.  Esmein. 
Translated  by  John  Simpson.  Boston,  Little,  Brown  and  Co.,  1913. 
640  p. 

*Marfa,  Juan.  Simplificacion  de  la  nueva  ley  vigente  de  enjuicia- 
miento criminal  (de  14  de  scptiembre  de  1882).  Barcelona,  Penin- 
sular, 1883.     1060  p. 

'  Armas  y  Saenz,  Ram6n  and  Dominguez-Alfonso,  Antonio.  Practica 
del  nuevo  enjuiciamiento  criminal  de  14  de  septiembre  de  1882. 
Madrid,  Fortanet,  1883.     639  p. 


lOO  GUIDE  TO  THE   LAW   OF   SPAIN 

the  admission  of  evidence  in  criminal  cases  was  published  in 
1910  by  Lopez  Infantes.^ 

The  question  as  to  how  far  expert  testimony  can  be  profit- 
ably received  on  an  issue  of  criminal  law  and  under  what 
necessary  safeguards  has  been  admirably  discussed  by  Do- 
rado,^ professor  of  criminal  law  in  the  University  of  Sala- 
manca. Such  important  questions  as  the  weight  to  be  given 
expert  evidence  of  physicians,  the  right  of  a  lawyer  to  press 
the  defense  of  emotional  insanity,  etc.,  are  critically  discussed. 
The  author  advocates  the  education  of  criminal  judges  in 
medical  jurisprudence  in  order  to  confine  the  influence  of 
the  experts  within  proper  limits. 

Several  matters  of  criminal  procedure  are  of  especial  inter- 
est for  investigators  of  Spanish  law.  Among  these  may  be 
mentioned  the  fact  that  the  courts  occupy  a  middle  ground 
between  the  rule  of  presumption  of  innocence  and  that  of 
presumption  of  guilt.  This  position  is  often  said  to  be  less 
conducive  to  miscarriages  of  justice  than  either  of  the  two 
extremes.  A  statute  of  limitations,  relating  both  to  dclitos 
and  faltas,  is  provided  for  under  the  criminal  code  (sections 
132-135).  Crimes  involving  capital  punishment  or  life  im- 
prisonment can  not  be  prosecuted  after  a  lapse  of  20  years; 
and  lesser  offenses,  after  periods  varying  from  two  months  to 
fifteen  years. 

Jury  Law. — The  jury  was  employed  in  Spain  as  early  as 
1 820  in  trials  of  offenses  committed  by  the  press.  A  somewhat 
broader  scope  was  later  given  the  system,  but  in  .1875  the  en- 
tire institution  was  suppressed.  The  act  of  April  20,  1888, 
reestablished  a  modified  form  of  the  jury  system  and  gave  it 
jurisdiction  to  sit  in  cases  of  felonies  and  some  misdemeanors. 
The  jury  was  never  extended  to  Cuba,  Porto  Rico,  or  the 
Philippines  by  the  Spanish  government,  and  does  not  now 
exist  in  many  of  the  Mexican  states  and  the  other  Spanish- 
American  countries.  An  exposition  and  discussion  of  the 
text  of  the  Spanish  law  was  published  by  Bravo  Molto,*  presi- 
dent of  the  Criminal  Chamber  of  the  Supreme  Court,  immedi- 
ately upon  its  appearance. 

■  L6pez  Infantes,  Leopoldo.  Apreciaci6n  de  la  prueba  en  materia 
criminal.     2d  ed.     Madrid,  Hijos  de  Rues,  1910.     152  p. 

^  Dorado  Montero,  Pedro.  Las  peritos  medicios  y  la  justicia  criminal. 
Madrid,  Hijos  de  Reus,  igo6.     291  p. 

^  Bravo  Molto,  Emilio.     Laley  del  jurado.     Madrid,  Nunez,  1888.     270P. 


CRIMINAL    PROCEDURE  lOI 

The  text  of  the  law  has  been  translated  into  French  in  an 
appendix  to  the  translation  of  the  law  of  criminal  procedure,  by 
Verdier  and  Depieges  {supra  p.  98).  A  good  edition  of  the 
text  of  the  jury  law,  annotated  and  supplied  with  relevant 
rules  for  the  admission  of  evidence  and  various  forms  required, 
was  prepared  by  Sdnchez  de  Ocana '  immediately  after  its 
promulgation.  The  most  useful  work  for  judges  and  lawyers, 
however,  is  the  treatise  of  Garcia,^  in  two  volumes,  with  a 
supplement. 

Another  practical,  but  less  extensive,  guide  to  the  jury  law 
by  Judge  Vipegon  ^  appeared  in  1901,  in  which  the  leading 
foreign  codes  are  compared  with  the  Spanish  law.  This  and 
Garcia's  work  are  in  current  use.  A  well  recommended  com- 
mentary on  the  jury  law  is  the  work  of  the  jurist  Pacheco;  *  it 
appeared  in  1 888  following  the  enactment  of  the  jury  law.  No 
recent  commentary  has  been  published. 

The  work  of  Rodriguez  Pinilla^  (1873),  though  now  old,  is  yet 
of  permanent  value  in  the  history  of  law.  He  traces  the  origin 
of  the  jury  and  discusses  its  advantages  in  the  first  half  of  his 
work.  The  second  half  he  devotes  to  comparing  the  jury  sys- 
tems of  France,  England,  and  Portugal.  At  that  time,  the 
reorganization  of  the  jury  was  a  question  of  much  importance 
in  Spain. 

The  Sumario. — Every  criminal  trial  in  the  more  serious 
offenses  is  divided  into  two  stages.  The  first  stage  is  the 
sumario,  which  has  no  exact  equivalent  in  our  procedure.  In 
effect,  it  is  similar  to  the  secret  investigation  of  a  grand  jury. 
After  the  crime  has  been  committed  and  the  criminal  appre- 
hended, he  is  kept  in  soU  tary  confinement  while  the  state,  through 
a  judge  of  the  first  instance  and  its  attorney  (fiscal),  conducts  a 
thorough  ex  parte  investigation.  The  Spanish  Constitution 
(arts.  4-5)  prohibits  the  detention  of  accused  persons  except 

'  Sanchez   de    OcaiSa,    Ram6n.     Codigo   manual   del   jurado.     Madrid, 

Rev.  de  legislacion,  1888.     160  p. 
^  Garcia  y  Romero  de  Tejada,  Jose.     El  libro  del  jurado.     Jerez,  "  El 

guadalete,"  1894-1897.     2  v.  and  supp. 
'  Vipegon.     Guia  de  los  jurados.     Madrid,  Ricardo  Fe,  1901.     281  p. 

*  Pacheco,  Francisco  de.     La  ley  del  jurado  coraentada  per  .  .  .  con  un 

prologo  del  Manuel  Alonso  Martinez.     Madrid,  Rev.  de  legislacion, 
1888.     941  p. 

•  Rodriguez  Pinilla,  Tomds.     El  jurado  ysu  establcciniiento  enEspaiia. 

Madrid,  La  constitucion,  1871.     196  p. 


I02  GUIDE  TO   THE   LAW   OF   SPAIN 

for  just  causes.  The  proceedings  based  on  this  constitutional 
provision  are  the  nearest  approach  in  Spanish  law  to  our 
habeas  corpus.  The  sumario  has  been  treated  of  in  a  mono- 
graph by  Saiz  y  Gomez.'  To  this  work  there  is  appended  a 
description  and  comments  on  the  organization  of  the  criminal 
courts. 

Conditional  or  Suspended  Sentence. — The  law  of  March 
17,  1908,  authorizing  the  employment  of  the  conditional  sen- 
tence {condena  condicional)  requires  special  mention.  It  is 
an  important  step  in  the  reform  of  Spanish  law.  The  law 
provides  for  the  suspension  of  sentences  under  certain  circum- 
stances. Bemaldo  de  Quiros  {infra,  p.  io6)  has  compared  the 
system  with  our  American  system  of  probation,  except  that  in 
the  latter  no  sentence  is  pronounced  in  the  first  instance. 
This  innovation  in  criminal  procedure  is  still  the  object  of 
lively  discussion  in  Europe  and  theorists  are  divided  on  the 
question  of  its  advisability. 

The  Revista  de  los  tribunates  ^  has  published  the  above 
statute  with  an  historical  and  explanatory  discussion  of  its  use, 
together  with  the  proyccios  and  discussions  produced  prior  to 
its  enactment,  with  some  relevant  foreign  legislation.  The 
law  for  delinquent  minors  is  also  appended.  Gonzalez  del 
Alba,^  president  of  the  appeal  court  of  Madrid,  has  published 
an  annotated  edition  of  the  statute.  Every  section  is  supplied 
with  copious  comments  by  the  annotator  and  relevant  supple- 
mentary laws.  The  introduction  to  this  work  came  from  the 
pen  of  the  criminologist  Bemaldo  de  Ouiros. 

Capital  Punishment. — Capital  punishment  still  exists  in 
Spain  although  there  has  been  in  the  past  a  great  agitation 
for  its  abolition.  The  jurist  Torres  Campos  *■  has  cham- 
pioned the  cause  of  the  opposition  and  his  memoir  published 
in  pamphlet  form,  is  possibly  the  best  known  work  on  the 
subject.     This  article  is  summarized  and  reviewed  in  volume 

'  Saiz  y  Gomez,  Miguel.     El  sumario  y  el  juez  de  instruccion.     Con  un 

ap6ndice  que  contiene  .  .  .  ideas  sobre  organizacion  de  los  tribu- 

nales,  etc.     Madrid,  Gongora,  i8go.     i  v. 
^  Ley  de  17  demarzo  de  1908  sobre  condena  condicional  .  .  .  porlaredac- 

cion  de  la  Revista  de  los  tribimales.     Madrid,  Gongora,  1908.     170  p. 
'  Gonzalez    del    Alba,  Primitivo.     La   condena   condicional.     Madrid, 

Hijos  de  Reus,  1908.     129  p. 
*  Torres  Campos,   Manuel.     La  pena  de  muerte,  y  su  applicaci6n  en 

Espana.     Madrid,  Gongora,  1879.     Pamphlet. 


MILITARY   CRIMINx^L,   LAW  IO3 

25  of  the  Journal  of  jurisprudence  (1881),  pages  35-38.  A 
work  relating  to  the  "death  penalty,"  which  warrants  men- 
tion because  of  its  merit  and  interesting  contents,  is  the 
"studies"  of  Gonzalez  Naudin.'  This  work  gives  a  complete 
history  of  this  form  of  punishment,  especially  as  to  the  tor- 
tures inflicted  in  the  eighteenth  and  nineteenth  centuries.  The 
Spanish  penal  laws  abound  in  excessive  and  cruel  punishments, 
some  of  which  are  reflected  in  the  codes  of  the  Philippines, 
Cuba  and  Porto  Rico.  Under  the  American  administration 
of  these  territories  the  eighth  amendment  of  the  Constitution 
of  the  United  States  is  sometimes  invoked.  Prof.  Schofield 
has  published  an  interesting  article  in  the  fifth  IlUnois  Law 
Review  (191 1),  pages  321-335,  discussing  the  question. 

Indemnity  for  Error  op  Justice. — Infringements  by 
wrongful  convictions  of  the  legal  rights  of  defendants,  under 
certain  circumstances,  are  repaired  by  civil  liability  of  the  judges 
and  punished  by  heavy  fines  and  imprisonment.  The  law  of 
August  7,  1899,  provides  that  when  the  judge  is  insolvent  the 
state  itself  will  indemnify  the  unfortunate  victim  to  the  extent 
of  his  injuries.  A  comparative  study  of  the  various  European 
systems  of  state  indemnity  for  errors  of  criminal  justice  was 
recently  published  by  Dr.  Edwin  M.  Borchard  in  the  Journal  of 
criminal  law  and  criminology,  volume  3  (1913),  pages  684-718, 
and  reprinted  as  United  States  Senate  Document  974,  sixty- 
second  Congress,  third  session. 

MILITARY  CRIMINAL  LAW 
Military  and  naval  courts  in  Spain  have  a  much  broader 
jurisdiction  than  similar  courts  in  the  United  States.  In  addi- 
tion to  jurisdiction  over  persons  in  the  service  they  can  try 
civiUans  in  certain  cases,  as,  for  example,  in  cases  of  minor 
crimes  involving  property  belonging  to  either  branch  of  the 
service.  The  military  law  of  Spain  is  governed  by  the  code  of 
miUtary  justice,  codigo  de  justicia  militar,  promulgated  Sep- 
tember 27, 1890.  This  code  is,  in  fact,  a  compilation  of  three 
earlier  statutes  with  some  minor  adjustments.  These  three 
are  the  organic  law  of  March  10,  1884,  organizing  the  courts 
of  war  {Tribunates  de  guerra),  the  military  penal  code  of  De- 
cember 17,  1884,  and  the  law  of  military  procedure  (ley  de 
enjuiciamiento  niHitar)  of  November  29,  1886.     The  code  of 

*  Gonzalez   Naudin,  Sebastian.     Estudios   sobre  la  pena   de   muerte. 
Madrid,  Rev.  de  legislaci6n,  1872.     104  p. 


I04  GUIDE  TO  THE   LAW   OF   SPAIN 

1890  has  been  modified  by  a  few  later  statutes,  especially  those 
of  August  7,  1899,  January  i,  1900,  and  August  25,  1904. 
The  Supreme  Council  of  the  Army  and  Navy  {Consejo  supremo 
de  giierra  y  maritia)  was  organized  under  the  law  of  December 
17,  1890.  This  law  contains  over  two  hundred  articles  defin- 
ing the  powers  and  duties  of  the  officials  and  the  manner  of 
procedure  and  records. 

The  code  of  military  justice  is  composed  of  seven  hundred 
and  fifty  articles  arranged  in  three  books.  Book  one  treats 
of  the  organization  and  powers  of  military  courts,  their  civil 
and  military  jurisdiction.  Books  two  and  three  take  up  the 
military  crimes  and  procedure. 

The  military  and  naval  laws  are  included  in  the  collection 
of  penal  laws  by  Medina  and  Maranon  (supra,  p.  94).  The 
annotated  edition  of  the  code  of  miUtary  justice  by  Nido '  is 
practically  a  commentary  and  is  perhaps  the  most  useful  work 
on  the  subject.  Soon  after  the  promulgation  of  the  code 
Sanchez  de  Ocana  ^  published  an  annotated  edition. 

The  legislation  governing  the  army  is  published  oflicially 
by  the  Minister  of  War.^  A  dictionary  or  encyclopaedia  of 
legislation  on  military  matters  was  published  by  Rodriguez 
Jimenez  *  in  1903. 

Several  treatises  dealing  with  the  subject  of  military  courts 
have  appeared.  Assistant  Solicitor  Piquer  ^  of  the  Supreme 
Council  published  in  1906  a  work  describing  the  organization, 
powers  and  the  procedure  of  military  courts.  A  practical 
pocket  guide  for  the  administration  of  military  justice  was 
issued  in  1 910  by  Trapaga  and  Blanco  de  la  Vina."     Procedure 

'  Nido  y  Torres,  Manuel  del.  Codigo  de  justicia  militar,  comentado  y 
concordado.     Madrid,  La  Correspondencia  militar,  191 1.     1064  p. 

^Sanchez  de  Ocana,  Ram6n.  C6digo  de  justicia  militar  de  27  de  sep- 
tiembre  de   1890  anotado  y  concordado.     Madrid,  G6ngora,   1890. 

591  P- 
^  Leyes  constitutivas  del  ejercito  y  organicas  del  estado  mayor  general 

.  .  .  hasta  el  fin  de  diciembre  1896.     Madrid,  Deposito  de  la  guerra, 

1896.     214  p.  with  supplement. 
*  Rodriguez  Jimenez,   Eusebio.     Diccionario  de  legislacion   militar,   6 

consultor  del  derecho  administrativo   militar,   compendio  general 

.  .  .  Madrid,  Dep6sito  de  la  guerra,  1903.     2  v. 
'  Piquer  y  Martin   Cortes,  Rafael   de.     Los  tribunales  de  guerra  .  .  . 

Madrid,  Lopez  y  del  Homo,  1906.     382  p. 
Trapaga  y  Aguado,  Adolfo  and  Blanco  de  la  Viiia,  Gerrado.     Cartera 

de  bolsillo  para  la  administracion  de  justicia  militar  en  el  ejercito. 

Madrid,  Patronato  de  huerfanos  de  admr.  militar,  1910.     851  p. 


MILITARY   CRIMINAL  LAW.  105 

before  the  courts,  both  of  the  war  and  navy,  is  discussed  in  a 
treatise  by  Cabrerizo.' 

Naval  jurisdiction  is  considered  as  a  part  of  the  military 
establishment,  but  is  governed  by  some  special  laws.  The 
penal  code  of  admiralty  of  August  24,  1888,  governs  this 
jurisdiction,  together  with  the  law  of  maritime  courts  of 
justice  and  naval  procedure  of  November  10,  1894,  as  amended 
by  the  act  of  January  i,  1900.  Soon  after  the  promulgation 
of  the  code  of  1888,  Romero  -  published  an  edition  with  brief 
comments  and  some  annotations.  An  official  edition  of  the 
code  appeared  in  1894,  published  by  the  Department  of  the 
Navy.  A  good  commentary  containing  all  the  laws  govern- 
ing the  naval  jurisdiction  and  all  the  statutes  of  necessary 
application  in  this  field  appeared  in  1895,  from  the  pen  of 
Moreno.'  The  Department  of  the  Navy  *  from  time  to  time 
publishes  the  legislation  concerning  that  department. 

In  Spain,  as  in  other  continental  countries,  military  service 
is  obligatory.  In  191 2  Trapaga  '  published  a  practical  guide 
to  the  application  of  the  act  or  law  governing  this  service. 
A  manual  dealing  with  the  pensions  of  widows  and  orphans 
of  soldiers  was  pubUshed  in  1910  by  Saball,"  a  writer  of 
authority. 

The  Supreme  Council  of  the  War  and  Navy  issues  officially 
a  monthly  bulletin  which  contains  among  other  items  of 
interest  the  decisions  of  the  military  courts. 

'  Cabrerizo,   F.     El  defensor  ante  los  tribunates  de  guerra  y  marina. 

Madrid,  Ministcrio  de  marina,  1905.     282  p. 
^  Romero  y  Villanueva,  Jos6  M.     Codigo  penal  de  la  marina  de  guerra, 

de  24  de  agosto  de  1888.     Con  comentarios  y  un  prologo  de  .  .   . 

Madrid,  Niinez,  1888.     272  p. 
'  Moreno  y  Lorenzo,  Joaquin.     La  jurisdiccion  de  marina.     Tratado  de 

todas  las  leyes  y  disposiones  de,  etc.  .  .  .     Madrid,  Hijos  de  J.  A. 

Garcia,  1895.     1016  p. 
*  Colecci6n  legislativa  de  la  armada.     Madrid,  del  Ministerio  de  Marina. 

1906.     I  V,  with  suppl. 
^  Trapaga  }-  Aguado,   Adolfo.     Guia  practica  para  aplicar  la  ley  del 

servicio  militar  obligatorio.     Madrid,  Cuerpo  intendencia  militar, 

igi2.     480  p. 
°Saball,   Fernando.     Manual  de  las   pensiones  de  viiidad  y  orfandad 

que  corresponden  a  las  familias  de  generales,  jefes  y  oficiales  del 

ej^rcito.    Madrid,  L6pez  del  Homo,  1910.    391  p. 


I06  GUIDE  TO   THE   LAW   OF  SPAIN 

CRIMINOLOGY   AND    REFORM   OF   CRIMINAL    LAW 

Modem  ideas  of  criminology  and  reforms  in  criminal  law 
did  not  reach  Spain  as  early  as  they  did  the  other  countries  of 
Europe,  due  perhaps  to  its  western  location  and  scientific 
seclusion.  Although  Spain  was  one  of  the  first  countries  to 
take  a  census  of  its  criminality  (1729)  and  the  practice  of  com- 
piling annual  statistics  began  early  in  the  nineteenth  century, 
these  had  bureaucratic  rather  than  scientific  aims.  Recently, 
however,  rapid  strides  have  been  made  in  the  actual  applica- 
tion of  scientific  reforms  as  well  as  in  the  advancement  of  the 
science  itself. 

The  names  of  Bemaldo  de  Quiros  and  Dorado  Montero  stand 
pre-eminent  in  the  list  of  Spanish  writers  on  criminology. 
Bemaldo  de  Quiros's  work  on  "Modem  theories  of  criminal- 
ity" is  the  leading  general  treatment  of  the  subject  in  Spain 
and  has  won  recognition  as  an  authoritative  work  in  the 
world's  literature  of  criminal  science.  The  second  edition, 
especially  revised,  was  translated  under  the  auspices  of  the 
American  Institute  of  Criminal  Law  and  Criminology  '  as  the 
first  volume  published  in  its  modem  criminal  science  series. 
The  distinguished  author  is  engaged  in  research  work  for  the 
Instituto  de  Reformas  Sociales  {infra,  p.  120)  and  has  produced 
numerous  interesting  and  useful  monographs  on  various  topics 
in  the  field  of  criminology. 

The  first  treatise  or  expository  presentation  of  merit  of  the 
science  of  criminology  by  a  Spanish  author  was  published  by 
Dorado.-  It  is  interesting  to  note  that  this  work  dealt  with 
criminal  anthropology  in  Italy.  Dorado's  leading  work  and 
probably  one  of  the  greatest  of  Spanish  works  on  criminal 
law  is  his  "  Problems  of  criminal  law"  {supra,  p.  96).  The 
same  author  has  since  published  several  modem  books  on 
various  subjects  in  the  field  of  the  law.  His  "  Bases  for  a  new 
penal  law  "  ^  and  "  New  penal  methods  "  *  attracted  much  favor- 

'  Bernaldo  de  Quiros,  Constancio.  Modem  theories  of  criminality. 
Translated  by  Alfonso  de  Salvio.  Boston,  Little,  Brown  and  Co., 
1911.     249  p. 

"  Dorado  Montero,  Pedro.  La  antropologia  criminal  en  Italia.  Madrid, 
Rev.  de  legislacion,  1889.     i  v. 

'  Dorado  Montero,  Pedro.  Bases  para  un  nuevo  derecho  penal.  Barce- 
lona, M.  Soler,  1902.     201  p. 

*  Dorado  Montero,  Pedro.  Nuevos  derroteros  penales.  Barcelona,  M. 
Soler,  1905.     I  V. 


CRIMINOLOGY   AND   REFORM   OF   CRIMINAL   LAW       IO7 

able  comment.  Mention  should  likewise  lx>  made  of  his  ' '  Crimi- 
nology and  penology'"  (1906)  in  which  is  inserted  an  eariicr 
study  on  criminality  in  Spain  during  the  period  of  the  regency 
(i 885-1 902).  An  original  and  interesting  work  is  his  criminal 
psychology  in  the  Spanish  legislation  =  which  gives  a  broad, 
learned  and  philosophical  view  of  criminal  psychology  in  its 
relation  to  statutory  enactments.  This  was  originally  in- 
tended only  to  apply  to  the  penal  code  but  the  author  was  led 
by  his  investigations  to  include  all  the  criminal  legislation. 

Among  other  general  treatises  on  the  subject  of  criminal 
anthropology  is  the  eariy  work  of  Martinez  Ruiz.'  The  first 
part  of  the  treatise  is  devoted  to  a  description  of  the  growth 
and  sources  of  the  new  science.  A  more  recent  work  by 
Carpena^  on  this  subject  is  attracting  attention  among 
jurists  and  students  of  the  science  for  its  elucidation  of 
the  cause  of  crime  and  its  prevention.  The  "forerunners  of 
criminal  science  in  Spain"  by  Montes  '  is  a  study  of  the  delin- 
quent and  of  the  causes  of  crime  and  their  remedies.  A 
treatise  by  Aramburu '^  on  the  new  criminal  science  offers 
interesting  reading.  Lombroso,  the  late  eminent  Italian 
criminologist,  published  an  interesting  and  suggestive  article, 
in  19 10,  in  volume  31  of  the  Italian  criminological  review, 
Archivio  di  antropologia  criminal,  pages  546-551,  on  the  cause 
of  Spanish  criminality.  He  describes  Spain  as  a  "classic" 
land  for  the  study  of  criminaUty. 

Attention  should  be  called  to  the  works  of  two  other  for- 
eigners who  have  made  valuable  contributions  to  the  study  of 
criminality  in  Spain.  Agusto  Bosco,'  in  his  "CriminaUty  in 
various  countries  of  Europe,"  devotes  an  entire  chapter  to 

•  Dorado  Montero,  Pedro.     De  criminologia  y  penalogia.     Madrid,  Rodri- 
guez Serra,  1906.     224  p. 

2  Dorado  y  Montero,  Pedro.     La  psicologia  criminal  en  nuestro  derecho 

legislado  .  .  .     2d  ed.     Madrid,  Hijos  de  Reus,  191 1.     358  P- 

3  Martinez  Ruiz,  Jos6.     La  sociologia   criminal.     Madrid,  Ricardo  F6, 

1889.     210  p. 
<  Carpena,  Fructuoso.     Antropologia  criminal.     Madrid,   Fernando   Fe, 

1909.     522  p. 
'Monies,  J.  Geronimo.     Precursores  de  la  ciencia   penal   en    Espafia. 

Madrid,  V.  Suarez,  1911.     745  P- 
»  Aramburu  y  Zuloaga,  Feliz  de.     La  iiueva  ciencia  penal.     Madrid, 

Fe,  1887.     377  P-  ^  T,  T> 

'  Bosco,  Augusto.     La  delinquenza  in  vari-Stati  di  Europa.     Rome,  K. 
Accademia  dei  Lincei,  1903.     282  p. 


Io8  GLIDE   TO  THE   LAW   OK   SPAIN 

Spain.  Ferri '  in  his  works  on  criminology  also  discusses 
briefly  the  conditions  in  Spain. 

Numerous  useful  discussions  of  specific  aspects  and  studies 
of  criminality  have  been  made  by  Bemaldo  de  Ouiros,  Lianas 
Aguilaniedo,  Ruiz  (Max  Bembo),  Jose  Varon  y  Caballero,  Gil 
Maestre,  and  the  well  known  Rafael  Salillas.  These  mono- 
graphs, while  of  considerable  interest  and  value,  are  believed 
to  be  beyond  the  scope  of  the  present  guide. 

Reforms  in  the  penitentiary  system  and  the  prison  laws  of 
Spain  have  been  treated  of  by  several  writers.  Cadalso  ^  in 
1893  published  a  work  on  prisons.  Lastres'  ^  work  on  the  same 
subject  is  several  years  older.  In  1901  Albo  *  prepared  in 
pamphlet  form  a  sketch  for  the  reformation  of  the  existing 
penitentiary  law.  Concepcion  Arenal  {supra,  p.  26),  one  of 
the  few  women  jurists  who  have  won  an  international  reputa- 
tion, has  been  most  active  in  reforms  of  criminal  law  and 
penology.  In  1901  she  published  a  four- volume  collection  of 
discussions,  etc.,  on  public  charities  and  prisons.^ 

A  magazine  (Revisia  penitcnciaria)  devoted  to  criminal 
reforms  was  edited  from  1904  until  1909  in  Madrid  by  Sahllas. 
Within  its  files  may  be  found  numerous  valuable  contribu- 
tions to  the  literature  of  the  reform  movement  in  criminal 
law. 

The  distinguished  legal  historian  and  philosopher,  Hinojosa," 
has  enriched  the  literature  of  this  field  by  his  work  on  "the 

'  Ferri,    Enr.     Sociologia  criminale.     4tli  ed.     Torino,   fratelli   Bocca, 

1900.     999  p. 
Same.      L'omicidio     nell'     antropologia    criminale.     Torino,     Bocca, 

1895.     2  V. 
^  Cadalso   y    Manzano,   Fernando.     Estudios  penitenciarios.     Presidios 

espaiioles.     Escuelas  clasica  y  positiva  y  colonias  penales.     Madrid, 

Gongora,  1893.     2  v. 

[Second  vol .  entitled  "  Principios  de  colonizacion  y  colonias  penales. ' '] 
'  Lastres,  Francisco.     Estudios  penitenciarios.     Madrid,   Nunez,    1887. 

236  p. 
*  Alb6  y   Marti,  Ramon.     Apuntes  para  un  proyecto  de  reforma  peni- 
tcnciaria.    Barcelona,  Miguel  Borros,  1901.     Pamphlet. 
^  Arenal,  Concepcion.    Obras  sobre  beneficiencia  )' prisiones.    Madrid,  V. 

Suarez,  igoi.     4  v. 
°  Hinojosa,  Eduardo.     Influencia   que   tuvieron  en  el  derecho  publico 

de  su  patria  y  particularmente  en  el  derecho  penal,  los  filosoficos  y 

teologos  espanoles  anteriores  a  nuestro  siglo.     Madrid,  Hu6rfanos, 

1890.     199  p. 


CONSTITUTIONAL  LAW  1 09 

influences  which  the  Spanish  philosophies  and  theologists 
anterior  to  our  century  have  had  on  public  law  of  the  country 
and  particularly  on  criminal  law." 

CONSTITUTIONAL  LAW 

Derecho  politico  as  employed  in  Spain  has  two  significa- 
tions,— a  broad  meaning  equivalent  to  political  science  in 
general,  and  a  restricted  or  narrow  one  of  constitutional  law. 
Under  the  title  of  political  law,  authors  frequently  discuss 
merely  constitutional  law,  with  occasional  digressions  into 
political  science. 

The  first  constitution  of  Spain,  excepting  the  French  Con- 
siilution  du  Bayone  in  1808,  was  framed  during  the  enforced 
absence  of  Ferdinand  VII,  in  1810,  and  promulgated  in  1812. 
Since  181 2  not  less  than  six  distinct  constitutions  have  been 
adopted  in  the  Peninsula  in  addition  to  various  renewals, 
amendments  and  abrogations.  The  present  constitution  was 
adopted  in  1876,  but  has  been  amended  through  the  efforts  of 
the  Liberal  party  since  1881  by  the  addition  of  provisions  for 
universal  suffrage  for  men,  trial  by  jury,  liberty  of  the  press, 
etc.  There  are  several  English  translations  of  this  document. 
Walton  includes  it  in  his  "Civil  law  in  Spain  {supra,  p.  36)." 
Professor  Dodd '  in  his  collection  of  the  fundamental  laws  of 
the  most  important  countries  of  the  world  presents  a  transla- 
tion with  historical  and  bibliographic  notes  (volume  II,  pp. 
197-216). 

A  recent  (191 3)  edition  of  the  constitution,  copiougl)-  an- 
notated by  Gonzalez,^  is  well  recommended.  Prof.  Dodd 
used  as  the  basis  of  his  translation  the  current  edition  of 
Gongora  which  also  includes  supplementary  laws.  The  last 
edition'  appeared  in  1910.  The  texts  of  all  the  Spanish  con- 
stitutions may  be  found  in  a  two  volume  collection  of  consti- 
tutions edited,  in   1886,  by  a  group  of  lawyers*  in  Madrid. 

■  Dodd,   Walter  Fairleigh.     Modem   constitutions.     Chicago,   Univ.   of 

Chicago  Press,  1909.     2  v. 
-Gonzalez,  Adolfo.     Constitucion  de  hi  monarquia  espanola.     Madrid, 

V.  Suarez,  1913.     120  p. 
^Constitucion  politica  de  la  monarquia  espiiola  y  leyes  complementarios 

por  la  redaccion  de  Revista   de  los  tribunales.     7th  ed.     Madrid, 

G6ngora,  1910.     224  p. 
'  Constituciones  de  Espana  y  de  las  demds  naciones  de  Europa  .  .  . 

por  una  sociedad  de  iurisconsultos.     Madrid,  Escribano  y  Eclieva- 

rria,  1S86.     3  v. 


no  GUIDE  TO  THE   LAW   OF  SPAIN 

The  government  publishes  officially  from  time  to  time  col- 
lections of  political  documents  including  all  the  constitutions, 
various  amendments  and  other  papers,  for  the  practical  use  of 
the  Spanish  parliament. 

General  treatises  on  derecho  politico,  as  has  been  observed, 
sometimes  extend  beyond  the  field  of  constitutional  law. 
Among  such  works,  attention  may  be  called  to  those  of 
Colmeiro,'  the  more  recent  treatise  of  Gil  Robles  ^  and  Prof. 
Santamaria  de  Paredes'^  Curso  de  derecho  politico.  The  last 
work  (8th  ed.,  1909),  while  general  in  scope,  is  more  espe- 
cially useful  for  its  sketch  of  Spanish   constitutional  history. 

The  leading  and  most  authoritative  contemporary  writer 
in  the  field  of  derecho  politico  is  Prof.  Posada,  of  the  University 
of  Madrid.  He  has  made  contributions  to  practically  every 
branch  of  the  subject.  In  1884  he  published  a  treatise  on  the 
principles  of  public  law  ^  which  was  intended  to  serve  as  an 
introduction  or  outline  of  a  greater  undertaking.  In  pursu- 
ance of  his  plan  there  have  appeared  a  two-volume  treatise  on 
the  fundamental  {politico),  or  constitutional,  law  ^  (revised 
1914);  a  two-volume  treatise  on  administrative  law  {infra, 
p.  112),  published  in  1894;  a  brief  guide'  for  the  study  of 
constitutional  law,  containing  the  principal  constitutional  docu- 
ments of  the  world  (1894);  and  finally,  in  1908,  a  short  trea- 
tise '  comparing  the  different  methods  of  teaching  political 
science,   recent  changes  in  the  law  and  various  methods  of 

'  Colmeiro,  Manuel.     Elementos  del  derecho  politico  y  administrativo 

de  Espafia.     7th  ed.     Madrid,  Viuda  6  hija  de  Fuentenebro,  1S87. 

312  p. 
Same.     Curso  de  derecho  politico  segiin  la  historia  de  Le6n  y  Castilla. 

Madrid,  F.  Martinez  Garcia,  1873.     618  p. 
-  Gil  Robles,  Enrique.     Tratado  de  derecho  politico  segiin  los  principios 

de  la  filosofia  y  el  derecho  cristianos.     Salamanca,   Torre,    1899- 

1902.     2  V. 
^  Santamaria  de  Paredes,  Vicente.     Curso  de  derecho-politico  .  .  .  con 

un  pr61ogo  de  Eduardo  P6rez  Pujol.     8th  ed.     Madrid,  Ricardo  F6, 

1909.     832  p. 
■•  Posada,      Adolfo.     Principios     de     derecho      politico:   introducci6n. 

Madrid,  Murillo,  1884.     350  p. 
5  Posada,  Adolfo.     Tratado   de   derecho  politico.     2d   ed.     Madrid,  V. 

Suarez,  1914.     2  v. 
"  Posada,  Adolfo.     Guia  para  el  estudio  y  aplicacion  del  derecho  con- 

stitucional  de  Europa  y  America.     Madrid,  V.  Suarez,  1894.     280  p. 
'  Posada,   Adolfo.     Derecho   politico   comparado.     Madrid,    V.    Suarez, 

1906.     251  p. 


ADMINISTRATIVR    I.AW  HI 

comparing  the  law  as  employed  by  noted  scientists.  It  may 
be  added  that  in  1914  Prof.  Posada'  prepared  a  work  on 
Spanish  public  law  for  the  series  Das  ofjcnilkhc  Recht  der 
Gcgemvart. 

J.  L.  M.  Curry ,==  late  Minister  of  the  United  vStates  to  Spain, 
prepared  in  1889  an  interesting  discussion  or  sketch  of  the 
development  and  history  of  constitutional  government  in 
Spain. 

Prof.  Torres  Campos'  the  same  year  published  in  German 
a  brief  memoir  on  the  public  and  constitutional  law  of  Spain 
which  also  appears  in  the  fourth  volume  (ist  half,  8th  part) 
of  the  Handbuch  des  dflcnllichcn  Rechis.  The  German  Gmehn,^ 
in  1905,  made  a  study  of  the  constitutional  development  of 
Spain.  Professor  Giner  de  los  Rios  in  his  Estudios  {supra,  p. 
23)  offers  a  few  interesting  monographs  covering  topics  in  the 
field  of  derecho  politico.  An  important  work  on  self-govern- 
ment and  the  doctrinarian  monarchy,  by  Azcdrate,^  published 
in  1877,  may  also  be  noted. 

An  interesting  treatise  by  Pons "  presents  an  extended  dis- 
cussion of  the  organization  and  powers  of  the  national  con- 
gress, or  parliament  (Cortes) ,  according  to  the  different  Spanish 
constitutions. 

ADMINISTRATIVE   LAW 

The  texts  of  all  the  administrative  laws  of  Spain,  annotated 
briefly  with  decisions  of  the  supreme  court,  have  been  com- 
piled in  one  handy  volume  by  Medina  and  Maranon.'     Among 

'  Posada,   Adolfo.     Spanisches  staatsrecht.     Tubingen,   Siebeck,    1914. 

246  p. 
'  Curry,  J.   L.   M.     Constitutional  government  in   Spain.     New  York, 

Hai-per  and  Bros.,  1S89.     222  p. 
3  Torres  Campos,   Manuel.     Das  staatsrecht   des   k6nigreiclis   Spanien. 

Freiburg,  J.  C.  B.  Mohr,  1889.     125  p. 
*  Gmelin,  H.     Studien  zur  spanischen  verfassungsgeschichte  des  neun- 

zehnten  jalirliunderts.     Stuttgart,  F.  Enkc,  1905.     267  p. 
=  Azc&rate,  Gumersindo  de.     El  self-government  y  la  monarquia  doctri- 

naria.     Madrid,  Pena,  1877.     299  p. 
«  Pons  y  Umbert,  Adolfo.     Organizaci6n  y  funcionamiento  de  las  cortes 

segiin  las  constituciones  espanolas  y  reglamentacion  de  dicho  cuerpo 

eolegislador.     Madrid,  Hijos  de  Hernandez,  1906.     773  p. 
'  Medina,    Leon    and    Maran6n,    Manuel.     Leyes    administrativas    de 

Espaiia.     Madrid,  Viuda  6  Hijos  de  Tello,  1907.     1,400  p. 


112  GUIDE  TO  THE   LAW  OP  SPAIN 

the  laws  included  are  those  in  regard  to  industrial  and  intel- 
lectual property,  waters,  ports,  mines,  railroads,  eminent 
domain,  upkeep  of  public  property,  public  charities,  public 
works,  contentious-administrative  courts,  etc.  This  work, 
like  the  other  collections  of  the  same  compilers,  is  currently 
used.  The  publishing  house  of  Gongora  in  Madrid  edits 
the  administrative  laws  in  convenient  volumes,  keeping  them 
up  to  date.  The  most  valuable  collection  of  laws  relating 
to  Spanish  public  administration  is  the  diccionario  of  Martinez 
Alcubilla  (supra,  p.  i6).  It  is  indeed  a  legal  encyclopedia, 
and  covers  practically  every  branch  of  Spanish  law.  Other 
useful  encyclopedias  including  all  administrative  laws  are 
cited  under  "General  works"  (supra,  p.  15). 

Reports  of  court  decisions  on  administrative  questions  are 
published  separately.  Reference  has  been  made  to  these 
under  "Court  reports"  (supra,  p.  12).  Since  the  abolition  of 
the  special  contentious-administrative  court  these  decisions 
are  handed  down  by  a  special  chamber  (sola  de  lo  contencioso- 
administrativo)  of  the  Supreme  Court  at  Madrid.  The  special 
jurisdiction  contencioso-administrativo  and  its  literature  have 
been  referred  to  under  "Civil  procedure"  (supra,  p.  88). 

The  best  brief  treatise  on  Spanish  administrative  law  is  the 
work  of  Santamaria  de  Paredes '  which  has  recently  appeared 
in  a  seventh  edition  (191 1).  The  author  is  a  distinguished 
member  of  the  faculty  of  law  of  the  University  of  Madrid. 
The  introduction  to  the  work  was  written  by  the  jurist  Perez 
Pujol.  A  lengthier  but  older  treatise  was  published  by 
Abella-  in  1888.  Royo  Villanova^  is  the  author  of  another 
useful  work  on  this  subject.  A  brief  treatise  appeared  in  1907 
from  the  pen  of  Prof.  Gascon  ^  of  the  University  of  Seville. 
A  work  of  some  merit  was  produced  in  1898  by  the  well- 
known  publicist,  Adolfo  Posada.^     Jurisdictional  conflicts  be- 

'  Santamaria  de  Paredes,   Vicente.     Curso  de  derecho  administrativo. 

7th  ed.     Madrid,  Espaiiola,  1911.     832  p. 
^Abella  y  Blave,  Fermin.     Tratado  de  derecho  administrativo  espanol. 

Madrid,  Administracion,  1886-1888.     3  v. 
'  Royo    Villanova,    Antonio.     Elementos    de    derecho    administrativo. 

Valladolid,  Castellana,  1909.     2  v.  in  i. 
■*  Gascon  y  Marin,  ]osk.     Nociones  de  derecho  administrativo  y  legislaci6n 

provincial  y  municipal.     Madrid,  Hijos  de  Reus,  1907.     292  p. 
'  Posada,  Adolfo.     Tratado  de  derecho  administrativo  segiin  las  teorias 

filosofica  y  legislaci6n  positiva.     Madrid,  V.  Suarez,  1897-8.     2  v. 


MUNICIPAL   AND   PROVINCIAL   ADMINISTRATION       II3 

tweeii  the  executive  and  judicial  powers  have  been  treated  in 
a  recent  work  of  Ubiema.'  A  recent  (191 4)  work  worthy  of 
note  is  the  collection  of  studies  by  Villar,^  a  lawyer  of  Madrid. 
Four  separate  topics  in  administrative  law  are  discussed. 

Translations  of  various  administrative  laws  in  force  in  the 
islands  of  Cuba,  Porto  Rico,  and  the  Philippines  at  the  time  of 
the  Spanish-American  War  have  been  made  by  the  Division  of 
customs  and  insular  affairs  of  the  War  Department.  In 
many  instances  the  provisions  are  identical  with  the  laws  of 
Spain.  A  compilation  of  laws  and  decrees  dating  from  Sep- 
tember 12,  1870,  to  December  31,  1896,  relating  to  the  civil 
administration  and  government  of  Porto  Rico^  was  translated 
in  1899.  There  has  also  been  translated  the  general  law  of 
public  works  of  Cuba,''  regulations  for  its  execution  and  a 
collection  of  laws  referring  to  public  works  in  Porto  Rico.' 

MUNICIPAL    AND    PROVINCIAL    ADMINISTRATION 

Municipal  customs  have  played  an  important  role  in  the 
development  of  continental  legal  history.  The  customary 
municipal  law  of  Spain  has  been  discussed  in  a  brief  work  by 
Costa  *  in  collaboration  with  two  other  jurists.  Abella,'  in 
1877,  and  Bias,'  in  1882,  published  works  on  provincial  and 

'  Ubiema  y  Eusa,  Jos6  Antonio.     Conflictos  jurisdiccionales  entre  los 

podcrcs  ejecutivo  y  judicial.     Madrid,  R.   Velasco,   1911.     371  p. 
^  V'illar  Grange!,  Domingo.    Estudiosde  derechoadministrativo.    Madrid, 

Hijosde  Reus,  1914.     294  p. 
'  Laws  relating  to  the  civil  administration  and  government  of  the  island 

of    Porto    Rico.     Translated    by    War    Department.     Washington, 

Government  Printing  Office,  1899.     53  p. 

*  Translation  of  the  general  law  of  public  works  of  the  island  of  Cuba  and 

regulations  for  its  execution  .  .  .  Washington,  Government  Printing 
Office,  1899.     loi  p. 

*  Translation  of  collection  of  laws  referring  to  public    works  in  Puerto 

Rico  (1896).  By  U.  S.  War  Department.  Washington,  Govern- 
ment Printing  Office,  1899.     112  p. 

"  Costa,  Joaquin;  Pedregal,  Manuel  and  Linares,  Gervasio  de.  Derecho 
municipal  consuetudinario  de  Espana.  Madrid,  Rev.  de  legisla- 
cion,  1885.     128  p. 

'  Abella  y  Slave,  Fermin.  Derecho  administrativo  provincial  y  munici- 
pal.    Madrid,  la  Riva,  1877.     6  v. 

'  Bias  y  Melendo,  Andres.  Derecho  municipal  y  provincial.  Madrid, 
Lezcano  y  Conip.,  1882.    354  p. 

7T231*'— 16 8 


114  GUIDE  TO  THE   LAW   OF   SPAIN 

municipal  administrative  law,  the  former  in  sbc  volumes. 
The  law  of  municipal  justice  of  1907  has  already  been  dis- 
cussed {supra,  p.  87).  Abella  *  has  prepared  a  manual  for 
inunicipal  officials,  which  is  in  fact  a  practical  treatise  on 
municipal  administration.  It  has  gone  through  six  editions. 
An  interesting  discussion  of  the  legislative  evolution  of  local 
government  in  Spain  from  181 2  to  1909  was  published  by 
Posada  ^  in  19 10. 

Prof.  Gascon  y  Marin  ^  prepared  an  elementary  work  on 
administrative  law,  with  special  reference  to  provinces  and 
municipalities.  He  followed  the  outline  or  plan  used  in  the 
examination  of  applicants  for  secretaryships  in  the  municipal 
governments.  The  modern  municipality,  its  powers  and 
duties,  is  the  subject  of  an  interesting  work  by  Rodriguez 
Martin,''  a  judge  of  a  court  of  first  instance.  Administrative 
questions,  such  as  public  order,  hygiene,  taxes,  vagrancy,  etc., 
are  discussed.  The  municipalization  of  public  utilities  has 
been  discussed  by  Gascon  y  Marin. ^ 

Special  attention  may  be  directed  to  the  encyclopedia  or 
dictionary,  compiled  by  Aleu  (supra,  p.  16),  of  all  technical 
terms  employed  in  the  administration  of  mimicipalities.  The 
work  really  is  an  encyclopedia  of  Spanish  law  but  is  designed 
especially  for  municipal  administrative  and  judicial  officers. 
The  second  edition,  in  eight  volumes,  was  completed  in  191 1. 

The  municipal  and  provincial  laws  in  force  in  Cuba  and  in 
Porto  Rico  are  closely  related  to  the  Spanish  laws.  Transla- 
tions of  both  were  made  in  1899  by  the  United  States  War 
Department." 

'  Abella  y  Blave,  Fermin.  Manual  del  secretario  de  ayuntamientos  6 
tratado  teorico-practico  de  administracion  municipal.  Madrid, 
Viuda  6  hijos  de  la  Riva,  1892.     6th  ed.     866  p. 

^  Posada,  Adolfo.  Evolucion  legislativa  del  regimen  local  en  Espana. 
1812  a  1909.     Madrid,  V.  Suarez,  1910.     513  p. 

'  Gascon  y  Marin,  Jos6.  Nociones  de  derecho  adminisU-ativo  y  legisla- 
cion  provincial  y  municipal.     Madrid,  Hijos  de  Reus,  1907.     292  p. 

■•  Rodriguez  Martin,  Antonio.  El  municipio  modemo.  Madrid,  Hijos 
de  Reus,  1907.     294  p. 

*  Gasc6n  y  Marin,  Jos4.  Municipalizacion  de  servicios  publicos.  Mad- 
rid, V.  Suarez,  1904.     289  p. 

"Translation  of  the  municipal  and  provincial  laws  in  force  in  tile  isjand 
of  Cuba.     By  U.  S.  War  Department,  Division  of  customs  and  insular 
affairs.     Washington,  Government  Printing  Office,  1899.     71  p. 
Translation  of  the   provincial  and    municipal   laws  of    Puerto  Rico. 
Washington,  Government  Printing  Office,  1899.     5^  P- 


WATERS  1 1 5 

ELECTIONS 

A  good  book  oti  electoral  procedure  in  Spain  was  published 
in  1897  by  Andreu.'  Giralt  ^  in  1901  prepared  a  manual  of 
the  electoral  legislation.  Sanz  ^  has  published  a  practical 
guide  and  explanation  of  the  application  of  the  act  of  1907, 
which  changed  the  form  of  electing  representatives  (diputados) 
to  the  Cortes.  The  electoral  law  of  1890  was  extended  in 
amended  form  to  the  islands  of  Cuba  and  Porto  Rico.  A 
translation  was  made  of  the  law,*  and  also  of  the  special  law 
for  the  election  of  councilors  and  deputies  in  Porto  Rico,'  by 
the  War  Department  of  the  United  States. 

WATERS 

The  civil  code  defines  the  ownership  of  waters  under  the 
heading  "Special  kinds  of  property,"  but  the  specific  laws 
governuig  water  rights,  irrigation  and  related  matters  is  em- 
bodied in  a  special  enactment  call  the  Ley  de  aguas  (law  of 
waters).  It  was  first  enacted  in  1866  and  was  extended  to  the 
Philippines  in  1871.  In  1879  a  new  and  elaborate  law  was 
enacted  in  the  Peninsula,  consisting  of  15  chapters  and  some 
general  provisions.  This  was  extended  to  Porto  Rico  in  1886, 
but  was  never  extended  to  the  Philippines.  The  law  for  Cuba," 
extended  to  Cuba  by  special  decree  of  Jan.  9,  1891,  was  trans- 
lated by  the  United  States  War  Department  in  1900.  Fran- 
quet,'  in  1864,  published  a  work  on  the  origin  and  history  of 

'  Andreu  y  Serra,  R.  Procedimiento  electoral  in  Espana.  Barcelona, 
Hcnrich  y  Comp.,  1897.     i  v. 

*  Giralt  y  Verdaguer,  Joaquin.     Manual  de  la  legislacion  electoral.     Bar- 

celona, Lopez,  1901.     I  V. 
'  Sanz  y  Caminalo,  Joaquin.     Ley  electoral  para  diputados  4  cortes  y 
concejales.     Madrid,  Hijos  de  Reus,  1908.     124  p. 

*  Adaptation  of  the  electoral  law  of  June  26,  1890  to  the  islands  of  Cuba 

and  Porto  Rico.  Translated  by  War  Department,  Division  of  Cus- 
toms and  Insular  Affairs.  Washington,  Government  Printing  Office, 
1899.     23  p. 

6  Electoral  law  for  the  election  of  councilors  and  provincial  deputies  in 
Porto  Rico.  Translated  by  War  Department,  Division  of  Customs 
and  Insular  Affairs.  Washington,  Government  Printing  Office,  1899. 
92  p. 

'  The  law  of  waters  in  force  in  the  island  of  Cuba.  Translated  by  War 
Department,  Division  of  Customs  and  Insular  Affairs.  Washington, 
Government  Printing  Office,  1900.     53  p. 

'  Franquet  y  Bertan,  Cirilo.  Ensayo  sobrc  el  origen,  espiritu  y  progresos 
de  la  legislacion  de  las  aguas.     Madrid,  Ducozcal,  1864.     2  v. 


Il6  GUIDE  TO  THE   LAW   OF  SPAIN 

the  legislation  concerning  waters.  The  author  presents  the 
laws  governing  waters  as  contained  in  the  ancient  codes  and 
in  modern  legislation.  The  legislation  of  present  importance 
commences  with  the  Ley  de  agiias  of  June  13,  1879.  A  con- 
venient compilation  of  this  and  succeeding  laws  governing  all 
inland  waters,  ports,  canals,  etc.  was  published  by  Aleu '  in 
1 91 2.  The  Revista  de  los  tribunales'  also  issues  annotated 
compilations  covering  the  same  subjects. 

HUNTING    AND    FISHING    LAWS 

Spain's  bird  law  was  first  enacted  September  19,  1896. 
The  government  moreover  became  a  party,  in  1905,  to  the 
international  agreement  for  protecting  birds  useful  to  agri- 
culture. After  the  passage  of  the  amending  statutes  of  May, 
1902,  and  July,  1903,  Abella '  issued  a  new  edition  of  his  earlier 
manual  of  the  hunting  laws.  The  Revista  de  los  iribunalcs  ^ 
recently  (191 2)  published  a  work  on  the  laws  governing  hunt- 
ing and  fishing,  annotated  with  the  decisions  of  the  courts. 
Two  other  useful  works  may  also  here  be  mentioned.  The 
first  is  a  manual  of  the  legislation  governing  sea  fishing  by 
Gonzalez  and  Sanchez,^  and  the  other  a  collection  of  interna- 
tional treaties  and  agreements  concerning  fishing  and  fishing 
rights  compiled  by  Lopez."  The  usefulness  of  the  latter  work 
is  increased  by  annual  appendices  containing  the  latest  agree- 
ments. 

MINES 

Mining  law  is  governed  by  a  special  act  which  has  been  fre- 
quently amended.     The  first  Ley  de  minas  (mining  law)  was 

'  Aleu  Cerrera,  Manuel.     Legislaci6n  de  aguas,  puertos,  canales  y  panta- 
nos.     Madrid,  Biblioteca  "Justicia,"  1912.     653  p. 

*  Redaccion  de  la  revista  de  los  tribunales.     Compilacion  de  la  legis- 

lacion  de  aguas,  canales  de  riego,  etc.     3d  ed.     Madrid,  Gongora, 
1902.     512  p. 
'  Abella  y  Blave,  Fermin.     Manual  de  derecho  de  caza  y  uso  de  armas. 
3d  ed.  Madrid,  Administracion,  1903.     324  p. 

*  Legislacion  de  caza,  uso  de  armas  y  pesca.     Por  la  Redaccion  de  la 

Revista  de  los  tribunales.     Madrid,  Gongora,  1912.     127  p. 
^Gonzalez  y  Maroto,  F.,and  Sanchez  y  Jimenez,  M.     Manual  de  legis- 

laci6n  sobre  pesca  maritima.     Madrid,  Asilo  de  Huferfanos  del  S.  C. 

de  Jesus,  1906.     687  p. 
°  L6pez  y  Medina,  F.     Coleccion  de  tratados  intemacionales,  ordenanzas 

y  reglatnentos  de  pesca.     Madrid,  B.     Cerrada,  igo6.     192  p.    7app. 

to  1914. 


MINES  117 

enacted  in  1859  and  revised  in  1S63.  During  the  last  half  of 
the  nineteenth  century  a  great  increase  in  the  industry 
demanded  many  reforms.  An  article  descriptive  of  the 
mining  laws  of  vSpanish  countries  by  one  of  the  present  day 
jurists,  Cabello,'  was  read  at  the  meeting  of  the  International 
Law  Association,  held  in  Madrid,  October,  1913,  and  was 
printed  in  its  reports  with  an  English  summary.  This  inter- 
esting article  was  reviewed  and  summarized  in  volume  39 
(191 3)  of  the  Law  magazine  and  review,  pages  83-96.  The 
Spanish  mining  laws  were  translated  into  French  by  Steven- 
son ^  in  191 1.  The  law  as  extended  to  Cuba '  by  royal  decrees 
of  October  10,  1883,  and  June  27,  1884,  was  translated  by  the 
War  Department,  with  an  appendix  containing  all  the  decrees 
issued  to  1 900.  The  law  in  force  in  the  Philippines  *  has  also 
been  translated. 

Two  good  compilations  of  the  mining  legislation  of  Spain 
were  made  in  191 2  by  Carrerra  '  and  Abella  °  respectively. 
An  extensive  work  on  mining  law  was  published  in  1890  by 
R.  and  M.  Sanchez  de  Ocana.'  It  gives  the  history  of  the 
legislation  and  a  collection  of  the  texts  of  the  various  laws  as 
well  as  judicial  decisions.  The  work  is  well  annotated  and  its 
appendices  extend  to  1898.  The  volume  of  M.  Sanchez  de 
Ocana*  appearing  in  1905  supplements  the  preceding  compila- 
tion.    A  treatise  of  some  importance  was  published  by  Car- 

'  Cabello  y  Guillen  de  Toledo,  Alfonso.     Leyes  de  minas  en  las  paises 

espanoles.     With  English  summary.     London,  R.  Flint,  1913.     38  p. 

-  Stevenson,  A.     Codes  miniers  ...  Espagne.     Paris,  Dunod  and  Pinat, 

1911.  141  p. 

^  Translation  of  the  mining  law  applied  to  Cuba  by  royal  decrees  of  . . .  with 
appendix  containing  all  provisions  issued  to  date.  By  W'ar  Depart- 
ment, Division  of  customs  and  insular  affairs.  Washington,  Gov- 
ernment Printing  Office,  1900.     95  p. 

*  Translation  of  the  mining  law  and  regulations  in  force  in  the  Philip- 
pines. By  War  Departmeat,  Division  of  customs  and  insular  af- 
fairs.    Washington,  Government  Printing  Office,  1900.     78  p. 

'  Carrera,   Manuel   Aleu.     Legislacion  de  miniis.     Madrid,    "Justicia," 

1912.  646  p. 

"  Abella  y  Blave,  Fermin.     Manual  de  Iegislaci6n  de  minas.     6th  ed. 

Madrid,  Administracion,  igii.     765  p. 
'  Sdnchez  de  Ocana,  Ramon  and  SSnchez  de    Ocana,  Maximo.     Legis- 

laci6n  minera.     Madrid,  Enrique  Maroto  y  hermano,  1890.     702  p. 

2  app. 
"  Sdnchez   de   Ocana,    Maximo.     Nueva    legislaci6n    minera,     Madrid, 

Hijos  de  Reus,  1905.     220  p. 


Il8  GUIDE  TO  THE   LAW   OF  SPAIN 

bonell '  in  1906;  it  contains  an  account  of  the  legislation  from 
1868  on,  and  much  practical  information.  Since  1906  one 
important  statute  has  been  enacted,  the  act  of  1908  establish- 
ing a  mining  council.  An  encyclopedia  of  mining  law  in  one 
volume  was  published  in  1906  by  Prats  and  Hernandez 
Pinteno.^ 

PUBLIC   FINANCE 

Medina  and  Maranon '  have  prepared  an  annotated  collec- 
tion of  all  the  statutes  and  laws  relating  to  the  Hacienda 
pi'ihlica,  or  the  public  treasury,  finances,  public  property, 
tariffs,  taxes,  etc.,  but  the  usefulness  of  the  collection  is  im- 
paired by  a  lack  of  revision  since  1894.  A  collection  of  the 
important  statutes  relating  to  the  public  finances  has  recentl}' 
(1913)  been  published  by  Vila  Serra.*  A  treatise  on  the  public 
treasury  and  finances  by  Villa  ^  appeared  in  1907.  An  older 
treatise  (5th  ed.,  1900)  of  Piernas"  enjoyed  considerable  author- 
ity but  the  second  volume  is  at  present  out  of  print.  Three 
well  known  legal  writers '  published  in  1 900  a  treatise  on  the 
accounting  system  of  the  Spanish  government.  The  budget, 
its  liquidation,  the  systems  of  the  national  and  provincial 
treasuries,  collection  of  taxes,  etc.,  are  some  of  the  topics  dis- 
cussed. The  work  is  especially  designed  for  the  information 
of  governmental  officials.  The  experiments  of  the  Spanish 
government  in  coinage  have  been  discussed  by  Henry  Charles 
Lea  in  an  article  which  appeared  in  volume  51  (1897)  of 
the  Popular  science  monthly,  pages  577-593. 

A  manual  of  the  tax  laws  governing  the  alienation  and  trans- 
mission of  property  according  to  the  law  of  1 900,  was  prepared 

'  Carbonell,  J.     Tratado  de  legislaci6n  de    minas.     Madrid,  Asilo  de 

Huerfanos  del  Sogrado  Corazon  de  Jesiis,  1906.     564  p. 
^  Prats  y  Garcia-Clalla,  Jose  and  Hernandez  Pinteno,  Jos6.     Enciclopedia 

juridica  minera.     Madrid,  Rev.  de  legislaci6n.     1095  p.     1906. 
^  Medina,  Le6n  and  Maraiion,  Manuel.     Leyes  de  hacienda  de  Espana. 

Madrid,  Manuel  Tello,  1894.     2  v. 
*  Vila  Serra,  Jose.     Legislacion  de  hacienda  piiblica.     Valencia,  Impr. 

del  autor,  1913.     714  p. 
'  Villa  y  Lindemdn,  Diego.     Hacienda  piiblica.    Madrid,  Hijos  de  Reus, 

1907.     212  p. 
"  Piemas  Hurtado,  J.     Tratado  dc  hacienda  piiblica.     5th  ed.     Madrid, 

V.  Suarez,  igoo.     2  v. 
'  Cjonzalez  Cedron,  Antonio;  Mendez  de  Vigo,  Leonci6  and  Peral,  Flo- 

rentino     Emilio.     Nociones    generales    de    contabilidad    piiblica. 

Madrid,  Hijos  de  Reus,  1900.     915  p. 


POOR  LAWS  1 1 9 

by  Abella,'  a  jirolific  writer  in  the  field  of  administrative  law. 
A  manual  ^  of  territorial  tax  laws  has  come  from  the  pen  of 
the  same  editor. 

The  recent  (1913)  collection  of  tariff  legislation,  with  tables 
for  importation  and  exportation  duties,  was  prepared  by  the 
editorial  house  of  Oongora.^  A  translation  '  into  linglish  of 
the  customs  tarilT  in  force  in  191 2  is  obtainalile. 

The  civil  code,  in  book  II  and  part  of  book  III,  contains 
complete  provisions  covering  real  property.  In  articles  605- 
608,  general  rules  for  the  registration  of  property  are  found, 
but  the  mortgage  law  (supra,  p.  60),  with  its  supplementary 
acts,  and  the  notarial  laws  (supra,  p.  89)  provide  specific  re- 
quirements for  registration  of  real  estate.  All  the  laws,  orders 
and  decrees  governing  the  registration  of  real  property  in  both 
Spain  and  the  colonies,  enacted  from  January  i,  1874  to 
December  31,  1882,  were  published  officially  in  two  volumes 
by  the  General  Director  of  Registration.'^ 

A  collection  of  the  laws,  ordinances  and  regulations,  adopted 
by  the  government  of  Spain,  relating  to  the  disposition  of 
public  lands  in  her  colonies  was  compiled  in  1828  by  Joseph 
M.White  (infra,  p.  139).  The  public  land  laws  in  the  Philip- 
pine Islands,  with  an  historical  account  up  to  1898,  were  col- 
lected by  the  Forestry  Bureau  in  1901  {injra,  p.  139). 

POOR    LAWS 

Spain  is  a  country  in  which  much  poverty  prevails  and  the 
government  has  had  to  maintain  many  public  charitable  or- 
ganizations.    The  editorial  house  of  Gongora  issues  from  time 

'  Abella  y  Blave,  Fermin.  Manuel  del  impuesto  de  derechos  reales  y 
transmisi6n  de  bienes.  7th  ed.  Madrid,  Adniinistraci6n,  1911. 
271  p. 

''Abella  y  Blave,  Fermin.  Manual  de  la  conU-ibuci6n  territorial.  7th 
ed.     Madrid,  Administracion,  1910.     767  p. 

'^  Legislaci6n  de  aduanas;  aranceles  de  importaci6n  y  exportacion  para 
la  Peninsula  k.  islas  Barlearcs.     Madrid,  Gongora,  1913.     300  p. 

■•  Translation  of  the  new  customs  tariff  of  Spain  with  comparison  of  duties 
leviable  prior  thereto.     London,  H.  M.     Stat.  Darling,  1912.     37  p. 

^  Coleccion  oficial  de  leyes,  reales  decretos  .  .  .  que  se  han  dictado 
referentes  al  registro  de  la  propiedad  inmucble  y  de  los  demds 
derechos  reales  desde  el  1°  de  enero  de  1874  hasta  el  31  de  dicicml)re 
1882  .  .  .  Por  la  direccion  general  de  los  rcgistros  civil  de  la  pro- 
piedad .  .  .  Madrid,   Ministerio  de  Gracia  y  Justicia,   1882-1884. 


I20  GUIDE  TO  THE   LAW   OF  SPAIN 

to  time  useful  collections  of  the  legislation  in  this  field.  A 
complete  manual  including  all  the  laws,  ordinances  and  regu- 
lations of  heneficencia  (poor  laws)  was  published  in  191 2  by 
Abella.' 

LABOR  LEGISLATION 

Spain,  finally  awakened  to  the  need  of  modern  labor  legisla- 
tion by  numerous  strikes  and  a  general  unrest  of  the  working 
classes  during  the  last  years  of  the  nineteenth  century,  is  now 
in  the  midst  of  a  rapid  and  wonderful  development  in  the 
field  of  social  legislation.  The  inactivity  of  the  country  in 
industrial  pursuits  and  the  fact  that  a  large  proportion  of  its 
population  is  engaged  in  agriculture  have  rendered  the  enact- 
ment of  laws  perhaps  less  imperative  than  has  been  the  case 
in  other  countries  of  western  Europe.  Yet,  since  1899,  the 
practical  beginning  of  the  progressive  legislation  in  Spain,  a 
considerable  advance  has  been  made. 

Through  the  initiative  of  Moret,  the  Minister  of  the  Interior, 
who  recognized  the  inadequac)'  of  the  provisions  of  the  civil 
code,  the  Comision  de  rcjormas  socialcs  was,  in  1883,  estab- 
lished by  the  government  to  investigate  labor  conditions  in 
Spain.  One  of  the  most  important  questions  considered  by 
the  commission  was  that  of  compensation  for  industrial  acci- 
dents. They  produced  a  program  of  legislation,  June  7,  1887, 
but  it  was  thirteen  years  before  a  statute  based  upon  it  was 
enacted.  The  commission  was  succeeded  by  the  present  In- 
stitute of  Social  Reforms  {Instilulo  de  reforinas  socialcs), 
established  by  royal  decree  of  April  23,  1903.  The  purpose 
of  the  Institute  is  to  study  the  labor  problem  in  Spain  and 
elsewhere,  compile  statistics,  inspect  the  condition  of  workers, 
and  make  recommendations  for  new  legislation.  It  is  com- 
posed of  thirty  active  members,  eighteen  chosen  by  the  gov- 
ernment, and  twelve  elected,  six  by  the  employers  and  six 
by  the  laborers.  In  addition,  there  are  four  ex  officio  mem- 
bers. Leading  sociologists  and  representatives  of  all  creeds 
and  political  parties  are  included  in  the  commission.  The 
excellent  service  rendered  and  the  legislation  secured — of 
vital  importance  for  the  protection  of  the  laborer — reflect 
much  credit  upon  the  Institute.     In  1912  it  published  a  con- 

'Abellay  Blave,  Fermin.     Manual  de  beneficiencia.     Madrid,  Admin- 
istraci6n,  1912.     511  p. 


LABOR   LEGISLATION  121 

densed  report,'  discussing  its  organization  and  operations,  as 
one  of  its  bulletins,  which  in  general  comprise  the  best  litera- 
ture on  labor  legislation  in  Spain. 

Labor  conditions  in  Spain  and  the  legislation  up  to  191  o 
are  discussed  in  the  valuable  French  work  of  Marvaud  ^  on 
the  social  question  in  Spain.  A  short  account  of  Spanish 
labor  legislation  since  1899  was  published  in  volume  5  of 
the  American  political  science  review  (191 1),  pages  249-253, 
by  Clarence  Perkins,  and  an  article  on  the  labor  laws  then 
in  force  by  Dr.  Simancas,  of  Madrid,  appeared  two  years 
previously  in  the  journal  of  the  Belgian  Institute  of  Com- 
parative Law  (vol.  2,  Rcvuc  Jc  rinstiiui  dc  droit  compare 
(1909),  86-95).  References  to  foreign  legislation  are  fre- 
quently made  by  way  of  comparison.  Probably  the  best 
general  description  and  condensation  of  the  social  labor 
legislation  is  the  section  by  Posada  in  the  work  Derecho 
usual  (supra,  p.  18). 

There  are  several  collections  of  the  texts  of  the  labor  laws 
conveniently  atmotated.  The  latest  (1914)  was  compiled  by 
Medina  Fernandez,^  the  prosecuting  or  State's  attorney  in 
the  Audoicia  of  Valladolid.  The  work  includes  all  the  legis- 
lation, as  well  as  forms  for  labor  contracts  and  an  explana- 
tory introduction.  The  Rcvista  de  los  tribunalcs  *  publishes 
complete  and  useful  collections  of  the  labor  laws,  annotated 
with  decisions  of  the  Supreme  Court  and  some  foreign  courts. 
The  work  was  considerably  enlarged  in  the  1913  edition. 
The  collection  published  by  the  Institute  of  Social  Reforms,^ 
in  1905,  is  kept  up  to  date  by  special  annual  appendices. 
The  Institute  also  publishes  projects  of  proposed  laws  as, 
for  instance,  in  1911a  draft  law  governing  the  labor  contract," 

■  Memoria  referente  a  la  organizacion  y  funcionamicnto  del  instituto  de 
refortnas  sociales.  Madrid,  Sue.  de  M.  Minuesa  de  los  Rios,  1912. 
103  p. 

^Marvaud,  Angel.     La  question  .sociale  cii  Espagne.     Paris,  F.  Alcan, 

1910-     475  P- 
^Medina  Fernandez,  Marino.     Compilacion  codificada  de  la  legislacion 

obrera  en  Espana.     Valladolid,  Cuesta,  1914.     418  p. 
*  Revista  de  los  tribunales.      Legislacion  obrera  .  .  .  concordada  y  ano- 

tada  con  la  jtu-isprudencia  espanola  y  extranjera.     3rd  ed.     Madrid, 

Gongora,  1913.    680  p. 
^  Instituto  de  refonnas  sociales.     Legislacion  del  trabajo.     Madrid,  Sue. 

de  M.  Minuesa  de  los  Rios,  1905.     358  p. 
°  Instituto  de  reformas  sociales.     Proyecto  de  lay  sobre  el  contrato  de 

trabajo.     Madrid,  Minuesa  dc  los  Rios,  1911.     528  p. 


122  GUIDE   TO  THE   LAW   OF  SPAIN 

and  in  1913  the  draft  of  a  law  governing  the  hours  of  labor 
of  clerks  in  mercantile  establishments.'  The  manual  of  Vila 
Serra  -  is  currently  used. 

The  recent  (1914)  treatise  of  Prof.  Gutierrez -Gamero '  of 
the  Industrial  School  of  Madrid,  although  brief,  discusses  in 
a  clear  manner  the  social  movement  in  vSpain,  current  legis- 
lation, organizations  of  labor  and  capital,  strikes  and  finally 
labor  contracts.  Two  monographs  of  Buylla,^  "the  work- 
man and  his  laws"  and  "the  protection  of  the  workman," 
should  not  be  omitted.  The  international  development  of 
labor  legislation  has  been  discussed  by  a  lawyer,  Sangro,^ 
who  is  also  associate  editor  of  the  Spanish  edition  of  the 
publications  of  the  international  association  for  the  legal 
protection  of  laborers.  Sangro's  *  lectures  on  the  intervention 
of  the  state  and  the  municipality  in  labor  questions,  deliv- 
ered before  a  religious  convention  in  Barcelona  in  191 2,  have 
attracted  much  attention.  He  treats  the  subject  rather  the- 
oretically, citing,  however,  extracts  of  existing  laws. 

The  Spanish  edition  of  the  publication  of  the  International 
Association  for  the  legal  protection  of  laborers  was  inaugurated 
in  1907  under  the  editorship  of  Dato,  Buylla,  Sangro,  Oyuelos, 
and  others.  Its  issues  are  irregular,  thirty-three  numbers  hav- 
ing appeared  up  to  June,  191 4.  These  contain  numerous  arti- 
cles of  referential  value.  In  regard  to  protective  laws  for 
mine  laborers,    the   Institute  of  Social   Reforms '   published 

'  Institute  de  reforrnas   sociales.     Preparacion  de  un  projecto  de  ley 

regulando  la  jomada  de  trabajo  de  las  persoiias  empleadas  en  los 

establecimientos  mercantiles.      Madrid,  Minucsa  de  los  Rios,  1913. 

192  p.     Contains  foreign  legislation  and  bibliography. 
"  Vila  Serra,  Jos6.     Manual  de  la  legislacion    del    trabajo.     Valencia, 

Impr.  del  autor,  igio.     638  p. 
^  Gutierrez-Gamero,    Francisco.     Legislacion    industrial.     Asociaciones, 

huelgas,  contrato  de  trabajo.     Madrid,  F.  Moliner,  1914.     286  p. 
*  Buylla  y  Alegre,  Adolfo.     El  obrero  y  las  leyes.     Madrid,  Rev.   de 

legislacion,  1905.     373  p. 
Buylla  y  Algre,  Adolfo.     La  proteccion  del  obrero.     Madrid,  V.  Suarez, 

1910.     258  p. 
''  Sangro  y  Ros  de  Olano,  Pedro  ...   La  evolucion  intemacional  del 

derecho  obrero.     Madrid,  V.  Suarez,  1912.    396  p. 
"  Sangro  y  Ros  de  Olano,  Pedro.     La  intervencion  del  estado  y  del  rauni- 

cipio  en  cucstiones  obreras  .  .  .  Barcelona,  P.  Ortega,  igii.     152  p. 
'  Instituto  de  Reformas  Sociales.     Informaci6n  sobre  el  trabajo  en  los 

minos.     Madrid,  Minuesa  de  los  Rios,  1910.     103  p. 


workmen's  insurance  and  employers'  liability  123 

some  statistical  information  in  1910,  and  Sanz,  Sallilas,  and 
Puyol,'  a  committee  appointed  by  the  Institute,  made  a 
thorough  and  complete  report  of  the  mines  in  Vizcaya  in 
1904. 

workmen's  insurance  and  employers'  ijahiijty 

Only  the  first  steps  have  as  yet  been  made  by  Spain  in  the 
field  of  social  insurance.  Two  important  measures  have  been 
passed — the  compensation  act  of  January  30,  1900,  and  the 
act  of  February  27,  1908,  establishing  a  national  institute  for 
old-age  pensions. 

The  law  of  January  30,  1900  ("law  in  regard  to  industrial 
accidents')  is  the  workmen's  compensation  act  of  Spain. 
Before  its  passage  the  compensation  of  workmen  for  industrial 
accidents  was  based  upon  the  criminal  and  civil  liability  pro- 
visions of  the  civil  code,  articles  1 902-1 910,  which  provisions 
were  derived  from  the  Roman  legal  ideas  of  responsibility  for 
the  consequences  of  one's  own  acts  or  for  the  acts  of  one's 
agent.  Its  legislative  history  dates  from  the  draft  project 
formulated  by  the  Commission  of  Social  Reforms,  June  7, 1887. 
This  plan  was  referred  to  a  committee  of  the  Senate  which 
returned  it  to  the  Commission  with  instructions  for  further 
elaboration.  On  May  2,  iSgi.a  revised  draft  was  presented, 
but  it  was  not  until  June  5,  1894,  that  there  was  introduced 
into  the  Cortes  a  bill  in  accordance  with  the  commission's 
recommendations.  The  bill  met  with  strong  opposition  and 
failed  to  become  law.  Finally  on  December  2,  1899,  the  bill 
for  the  present  act  was  introduced  and  became  law  on  January 
30,  1900.  This  act  establishes  the  main  principles  but  hardly 
enters  into  details  of  procedure  and  administration.  The 
Government  was  directed  to  publish  all  necessary  regulations 
within  six  months.  The  legislation  now  in  force  in  addition 
to  the  law  of  January  30,  1900,  includes  the  decree  of  July  28, 
1900,  forming  a  complete  set  of  regulations;  the  decree  of 
August  27,  1900,  in  regard  to  accident  insurance  companies; 
and  the  decrees  of  March  26,  and  July  2,  1902,  extending  the 
application  of  the  law  to  the  War  and  Navy  departments, 
respectively.  In  addition,  a  number  of  less  important  royal 
orders  (ordenes  reales)  interpreting  certain  articles  of  the  law 

'  Sanz  y  Escartin,  Eduardo;  Sallillas,  Rafael  and  Puyol  y  Alonso,  Julio. 
Minas  de  Vizcaya.     Madrid,  Minuesa  de  los  Rios,  1904.     331  p. 


124  GUIDE  TO  THE   LAW   OF   SPAIN 

or  modifying  preceding  decrees  have  been  promulgated  from 
time  to  time. 

A  complete  analysis  of  the  law  of  1900  and  of  all  decrees 
and  orders  up  to  the  close  of  1910  appeared  in  the  twenty- 
fourth  annual  report  of  the  United  States  Commissioner  of 
Labor,  vol.  II,  pages  2321-2376.  The  entire  question  of  work- 
men's insurance  in  Spain  is  discussed ,  and  a  translation  of  the 
act  of  1 900  is  included  at  pages  2705-2707  of  the  same  volume. 
This  law  is  also  described  in  detail  by  h.  Leger  in  the  Annales 
des  sciences  politiques,  volume  21  (1906),  pages  494-515,  and 
by  Delearde  in  the  fifteenth  volume  of  the  Bulletin  du  Congrbs 
international  des  accidents  du  travail  (1904),  pages  56-94. 

The  law  provides  rates  of  compensation  in  detail  for  all 
degrees  of  injuries  to  employees  arising  out  of  or  in  the  course 
of  employment,  unless  caused  by  -vis  major  and  forces  extra- 
neous to  the  employment  in  which  the  injury  occurs.  There  are 
also  qualifications  relating  to  fraud,  imprudence  or  negligence 
of  the  workman.  It  is  applicable  to  employees  in  government 
works,  such  as  arsenals,  ammunition  works,  etc.,  and  the  gov- 
ernment, including  state,  provincial  and  communal  adminis- 
tration, is  treated  like  a  private  employer  for  the  purposes  of 
the  law. 

It  is  interesting  to  note  that  the  compensation  act  of  1900 
contains  no  special  provisions  for  agricultural  laborers  and  is 
not  applicable  to  them  except  where  machinery  propelled  by 
steam,  etc.,  is  employed,  despite  the  fact  that  Spain  is  mainly 
an  agricultural  country.  The  Instiiuto  de  Rejormas  Socialcs 
has  published  a  proposed  project  of  a  special  compensation 
act  for  this  class  of  workmen.  It  is  probable  that  in  the 
future  the  new  legislation  will  follow  this  line  of  division. 

Employers  are  not  compelled  to  insure  against  accidents  to 
their  employees,  nor  is  there  required  a  guaranty  fund  from 
which  payment  can  be  made  to  the  injured  parties  under  the 
compensation  act.  Hence,  in  case  the  employer  becomes 
insolvent  the  law  can  have  little  effect.  The  Government, 
however,  endeavors  to  stimulate  voluntary  insurance  on  the 
part  of  employers  by  offering  them  an  opportunity  of  relieving 
themselves  of  liability  by  insuring  in  certain  casualty  com- 
panies. The  employer  must  bear  the  expense  of  the  insurance 
and  the  amounts  paid  to  the  injured  employees  are  carefully 
observed  to  see  that  they  are  not  less  than  those  allowed  by 


workmen's  insurance  and  employers*  liahility  125 

law.  Such  casualty  companies  are  under  the  strict  super- 
vision of  the  Government.  They  are  regulated  by  the  royal 
decree  of  August  27,  1900,  and  orders  of  October  16,  and 
November  10,  1900.  The  decree  of  August  27,  1900,  is  trans- 
lated in  the  "Commercial  Laws  of  the  World"  series  {supra, 
p.  65),  volume  XXXII,  pages  279-281. 

The  compensation  of  workmen  for  industrial  accidents  has 
been  discussed  by  nimierous  law  writers.  The  statute  is  so 
recent  and  changes  are  being  made  so  often  that  the  latest  work 
is  the  most  useful.  An  annotated  text  of  the  workman's 
compensation  act,  with  all  amendments,  is  included  in  the 
general  collection  of  labor  laws  {supra,  p.  121).  A  good 
manual  of  the  act  with  its  supplementary  laws  appeared  in 
191 1.'  This  contains  also  the  Sunday  rest  law  {Descanso 
dominical,  infra,  p.  129)  of  1904  with  its  amendments.  The 
annotated  collections  of  Catala,^  containing  the  compensation 
act,  the  laws  for  insurance  against  accidents,  wages,  industrial 
courts  and  regulations  for  mine  labor,  may  be  recommended. 
The  decisions  on  the  workmen's  compensation  act  were  pub- 
lished in  1906  by  the  Institute  of  Social  Reforms.'  Two 
appendices  carry  the  work  to  date  (19 14). 

Directly  following  the  promulgation  of  the  compensation 
act  several  treatises  appeared.  Among  these  may  be  men- 
tioned the  works  of  Estasen,^  Aumatell  Tusquets,^  and  Gon- 
zalez Rebollar,"  all  of  practically  equal  merit.     Each  contains 

'  Manual  de  accidentes  del  trabajo,  protecci6n  a  la  infancia  y  descanso 

dominical  .  .  .  por  Justia.     Madrid,   Biblioteca  "Justicia",   1911. 

419  p. 
•^  Catala  y  Gavild,  Juan  Bautista.     JvCgislacion  obrera  .  .  .  con  todas  las 

disposiciones  legales  .  .  .  jurisprudencia,   etc.     Madrid,   Adminis- 

tracion,  igii.     382  p. 
■'  Institute  do  rcformas  sociales.     Jurisprudencia  de  los  tribunales  en 

materia  de  accidentes  del  trabajo.     Madrid,  Minuesa  de  los  Rios, 

1906.     217  p.     2  app. 

*  Estasen,  Pedro.     Los  accidentes  del  trabajo  y  el  seguro  de  accidentes. 

Madrid,  Hijos  de  Reus,  1903.     638  p. 

*  Aumatell  Tusquets,  Francisco.     Los  accidentes  del  trabajo.     Kstudio 

de  la  ley  de  30  de  cnero,  1900  y  .  .  .  complementarias  .  .  .  scguido 
de  un  sucinto  exaracn  comparativo  de  la  legislaci^A  extranjera. 
Barcelona,  Penella  y  Bosch,  1903.  298  p. 
"  Gonzalez  Relxjllar.  Hipolito.  Ley  de  accidentes  del  trabajo.  Rstudios 
critico  de  la  ley  espaiiola  de  30  de  encro  de  1900  .  .  .  comparades 
con  las  principales  legislaciones  extranjeros  .  .  .  Salamanca,  Cal6n, 
&  cargo  de  A.  Iglesias,  1903.     506  p. 


126  GUIDE  TO  THE   LAW   OF  SPAIN 

the  Spanish  legislation  up  to  1903  and  practically  covers  the 
same  ground.  A  more  recent  work  is  the  short  commentary 
of  Nido,'  annotated  with  the  decisions  of  the  Supreme  Court. 
The  practical  use  of  the  work  is  enhanced  by  full  and  com- 
plete forms  for  the  drawing  up  of  necessary  legal  papers. 
Probably  the  most  useful  and  important  treatise  on  the  sub- 
ject is  that  published  by  Ricardo  Oyuelos,^  a  recognized  au- 
thority. This  contains,  in  addition  to  the  doctrinal  state- 
ments, the  texts  of  the  legislation,  judicial  decisions,  as  well 
as  foreign  legislation  for  comparative  purposes.  The  publi- 
cation of  his  supplementary  work,  "Code  of  social  reforms,"^ 
extends  the  legislation  to  191 3.  The  latter  is  merely  a  collec- 
tion of  the  statutes  and  decisions  in  force  in  191 2. 

The  compensation  act  has  not  proven  entirely  satisfactory. 
The  movement  for  revision  began  in  1 904  on  the  initiative  of 
the  labor  delegates  to  the  Institute  of  Social  Reforms.  On 
June  28,  1907,  the  Institute  completed  a  draft  of  a  proposed 
new  bill  and  this  bill  was  introduced  in  the  Cortes,  practically 
without  change,  by  the  Minister  of  the  Interior  July  16,  1910. 
It  failed  to  become  a  law. 

The  subject  of  social  insurance  has  been  covered  in  brief 
form  in  a  recent  (1913)  treatise  of  Lopez  Nunez.''  It  has 
received  high  commendation.  Insurance  for  labor  accidents 
and  old  age,  as  well  as  savings'  banks,  fraternal  organizations, 
personal  risks,  etc.,  are  some  of  the  matters  discussed.  The 
Jnslituto  National  de  Prevision  and  the  laws  governing  it  are 
explained. 

Sickness  insurance  of  workmen  is  comparatively  new  in 
Spain.  The  progress  made  so  far  is  due  to  private  or  coopera- 
tive efforts,  without  any  interference,  assistance,  or  regulation 
by  the  government.  The  existing  institutions  for  medical 
or  financial  assistance  during  illness,  which  are  organized 
more  or  less  upon  an  insurance  basis,  may  be  classified  in 

'  Nido  y  Torres,  Maimel  del.  Ley  de  accidentes  del  trabajo.  Comeii- 
tada  .  .  .  Sevilla,  Escuelas  profesionales  de  artes  y  oficios,  igii. 
265  p. 

^  Oyuelos,  Ricardo.  Tratado  de  legislaci6n  y  jurisprudencia  de  acci- 
dentes del  trabajo.     2ded.     Madrid,  R.  Rojas,  1906.     642  p. 

^Oyuelos,  Ricardo.  C6digo  de  reformas  sociales.  Coleccion  de  las  leyes 
y  de  la  jurisprudencia  vigentes.     Madrid,  Scaevola,  1913.     261  p. 

^  L6pez  Nunez,  Alvaro.  Lecciones  elementales  de  prevision.  Madrid, 
Sue.  de  Minuesa  de  los  Rios,  1913.     245  p. 


INDUSTRIAL   AND   ARRITRATION   COMMISSIONS.      127 

three  groups:  (i)  The  commercial  sickness  insurance  com- 
panies; (2)  the  mutual  sick  benefit  societies;  and  (3)  the 
special  funds  of  charitable  organizations. 

The  system  of  governmental  pensions  to  military  and  civil 
employees  is  highly  developed  in  Spain.  Nevertheless,  little 
had  been  done  in  the  field  of  old-age  and  permanent  injury 
insurance  for  workmen  until  the  National  Institute  for  Old- 
Age  Insurance  was  established  by  the  law  of  February  28, 
1908,  although  there  had  been  great  need  for  governmental 
assistance  for  some  time.  The  Institute  is  endowed  by  the 
government  and  its  purpose  is  to  stimulate  the  popular  inter- 
est in  savings,  in  insurance  and  especially  in  old-age  insurance 
as  well  as  to  encourage  other  local  institutions  of  the  same 
type.  Practically,  the  operations  consist  in  selling  old-age 
pensions  or  deferred  annuities  to  individuals  of  the  working 
classes.  The  voluntary  character  of  the  insurance  is  the 
essential  feature  of  the  system,  and  the  employers  arc  not 
required  to  make  any  contributions  to  the  fund.  The  law  of 
Februars'  27,  1908  and  succeeding  laws  for  the  guidance  of 
the  Institute  are  included  in  the  collection  of  mutual  and  old- 
age  insurance  laws  published  recently  by  the  Rcvista  dc  los 
trihunalcs} 

INDUSTRIAL   COURTS    AND    ARBITRATION    COMMISSIONS 

Industrial  courts  were  established  by  the  law  of  May  19, 
1908  and  the  locations  of  the  individual  courts  were  fixed  by 
the  law  of  October  20,  1908.  Some  changes  were  made  by 
the  law  of  July  22,  1912.  These  courts  are  composed  of  a  pre- 
siding judge,  three  jurors  and  an  alternate  chosen  by  the  inter- 
ested workmen  from  a  list  presented  by  the  employers,  and 
the  same  number  chosen  by  the  employers  from  a  hst  presented 
by  the  workmen.  The  court  thus  constituted  has  jurisdic- 
tion over  differences  between  employers  and  employed  in 
matters  concerning  the  nonfulfillment  or  annulment  of  con- 
tracts to  provide  workmen,  contracts  to  work,  apprenticeship 
agreements,  and  over  differences  regarding  the  application  of 
the  workmen's  compensation  act.  Appeal  from  the  decision 
of  this  court  lies  to  a  second  court  composed  of  a  presiding 

'  Legislacion  de  seguros,  mutualidad  y  prevision  con  tablas,  modelos  .  .  . 
per  la  redaccion  de  la  Revista  de  los  trihunalcs.  Madrid,  Gongora, 
igi2.     720  p. 


128  GUIDE   TO  THE   LAW   OF   SPAIN 

judge,  seven  jurors  and  two  alternates  chosen  from  the  em- 
ployers, and  the  same  number  chosen  from  the  employees. 
The  complete  text  of  the  law  of  May  19,  1908  was  published 
in  volume  4  (1908)  of  the  Bolctin  of  the  Institute  of  Social 
Reforms,  pages  1 278-1 287.  A  brief  commentary  of  the  law 
was  pubUshed  by  Lopez'  in  1909.  A  discussion  of  industrial 
courts  by  Puig  Martinez  and  MascarelP  was  published  in  1909. 
Labor  accidents  are  also  included  in  the  work. 

On  the  same  date  a  law  was  passed  establishing  councils  of 
conciliation  and  industrial  arbitration.  A  labor  dispute  must 
be  presented  to  the  local  council  or  junta  a  certain  length  of 
time  before  a  strike  is  called,  and  an  attempt  is  made  to  settle 
the  trouble  by  arbitration.  Compulsory  arbitration,  however, 
is  not  yet  provided  for  and  the  juntas  are  not  required  to  come 
to  a  final  settlement.  A  law  dealing  with  strikes  and  unions 
and  recognizing  the  right  of  employers  to  organize  and  em- 
ployed to  organize  and  strike  was  passed,  January  27,  1909, 
through  the  efforts  of  Prime  Minister  Maura.  This  law  makes 
all  strike  leaders  (considering  as  such  all  officers  in  unions  as 
well  as  those  who  actually  arouse  the  workmen  by  writings  or 
speeches)  responsible  for  illegal  acts  of  the  strikers.  The 
inciters  of  an  illegal  act  receive  the  maximum  penalties,  while 
only  the  minimum  is  imposed  on  those  actually  committi'ig 
the  act.  Strict  rules  for  advance  notices  of  impending  strikes, 
etc.,  are  included.  This  law  has  been  severely  criticized  by 
many  of  the  republicans  and  socialists  on  the  ground  that  it 
tends  to  make  a  successful  strike  extremely  difficult. 

LABOR    ORGANIZATIONS 

A  history  of  the  development  of  labor  organizations  in 
Spain  since  the  twelfth  century  was  prepared  by  Ufia  ^  in  1899. 
The  Ateneo  of  Madrid  rewarded  the  author  with  a  monetary 
prize.     The  German  writer,  Kulemann,^  in  his  recent  (1913) 

'  Lopez,  Francisco  R.  Ley  de  tribunales  industriales  de  19  de  mayo  de 
1908  y  la  legislacion  del  trabajo.     Almeria,  El  Triunfo,  1909.     454  p. 

^  Puig  Martinez,  C6sar  and  Mascarell  Llacer,  Larazo.  Tribunales  indus- 
triales. Accidentcs  del  trabajo.  Valencia,  F.  Senipere  y  Comp., 
1909.     294  p. 

^Una  y  Sarthou,  Juan.  Las  asociaciones  obreras  en  Espana.  Madrid, 
G.  Juste,  1900.     374  p. 

*  Kulcraann,  W.  Die  Berufsvereine.  Vol.  5.  Berlin,  Bcrlag  von  L. 
Simion  1913.     pp.  393-412- 


MISCELLANEOUS   LABOR   LAWS  1 29 

work,  Die  Berujsvereitie,  devotes  a  section  to  labor  associations 
in  Spain.  The  section  is  recommended  by  the  officials  of  the 
Institute  of  Social  Reforms.  Reference  may  be  also  made  to 
the  chapter  of  the  treatise  of  Gutierrez-Gamero  {supra,  p.  122) 
covering  this  subject. 

MISCELLANEOUS   LABOR   LAWS 

A  law  to  protect  women  and  children  in  all  industrial  and 
commercial  establishments,  except  agricultural  labor  and  work 
done  at  home,  was  passed  March  13,  1900.  Emile  Chauvet' 
discussed  this  law  in  his  work  on  the  legal  protection  of  labor- 
ers in  Spain.  The  law  forbids  the  employment  of  children 
under  ten  years  of  age  except  in  some  cases  where  the  child 
can  read  and  write,  and  limits  the  working  hours  for  children 
under  14  years  to  six  in  industrial  and  eight  in  commercial 
establishments.  In  general  it  limits  to  eleven  hours  a  day 
the  labor  of  all  persons  under  the  protection  of  the  law.  The 
provisions  relating  to  women  employees  previous  to,  during, 
and  immediately  following,  maternity  are  greatly  amplified  by 
the  law  of  January  8,  1907.  By  royal  decree  of  January  25, 
1908,  some  changes  were  made  in  the  general  law  and  a  com- 
I)lete  list  of  employments  forbidden  to  women  and  minors  was 
published.  In  addition,  three  statutes  (July  26,  1878;  July 
23,  1903;  and  August  12,  1904)  designed  to  protect  children 
may  be  noted.  Lopez  Nunez  -  has  published  the  best  treatise 
on  the  protection  of  children.  It  emphasizes  health  and  moral 
problems. 

Another  important  step  in  the  industrial  laws  of  Spain  was 
the  Sunday  rest  law  (Descanso  dominica/)  of  March  3,  1904. 
No  law  has  as  yet  been  passed  to  limit  the  length  of  a  day's 
work  for  artisans,  but  in  1902  a  decree  of  the  Minister  of 
Finance  fixed  eight  hours  as  the  day's  work  in  the  state  mines 
and  factories,  with  provisions  for  payment  for  overtime. 

Numerous  other  laws  have  been  enacted  in  the  field  of 
social  legislation,  such  as  those  governing  apprenticeship,  co- 
operation and  emigration.     Some  little  advance  has  been  made 

'  Chauvet,  Emile.     La  protection  legale  des  travailleurs  en  Espagne. 
Paris,  Soc.  nouvelle  de  librairie  (G.  Bellins),  1903.     132  p. 

■M.A3pez  Nunez,  Alvaro.     La  protcccion  de  la  infancia  en  Espana.     Mad- 
rid, E.  Arias,  igoS.     399  p. 
77231° — 15 9 


130  GUIDE   TO  THE   LAW   OK   SPAIN 

in  technical  and  labor  education,  and  in  Valencia  and  Barcelona 
model  homes  for  workmen  were  established,  in  1914.  The 
Institute  of  Social  Reforms  •  published  in  1910  a  second  edi- 
tion of  a  collection  of  notes  and  bases  for  the  draft  of  a  law 
for  workmen's  housing.  Reference  has  already  been  made 
(supra,  p.  122)  to  the  recent  draft  of  a  law  governing  the  hours 
of  employment  of  clerks  in  mercantile  establishments.  One 
of  the  most  recent  projects  is  the  proposed  law  prohibiting  all 
night  work  in  bakeries.^ 

INTERNATIONAL   LAW 

PUBtlC    INTERNATIONAL    LAW 

While  works  on  public  international  law  bear  only  a  slight 
relation  to  Spanish  municipal  law,  nevertheless  many  of  them 
contain  data  on  the  international  legal  relations  of  Spain,  and 
for  that  reason  the  most  important  works  in  this  field  may 
appropriately  be  mentioned. 

The  treaties  of  peace  between  Spain  and  other  countries 
since  the  year  1590  are  readily  accessible.  Abreu's  ^  compila- 
tion of  treaties  covering  the  years  from  1590  to  1700,  in  twelve 
volumes,  was  published  during  the  middle  of  the  eighteenth 
century.  The  treaties  from  1700  to  1843  were  collected  by 
Cantillo*  in  one  large  volume,  and  those  from  1842  to  1868  by 
Janer.'^  These  were  all  published  under  the  direction  of  the 
Department  of  State  {Ministerio  del  Eslado).  The  texts  of 
the  treaties  from  1834  to  1907  are  printed  in  Olivart's "  coUec- 

'  Instituto  de  reformas  sociales.  Preparaclon  de  las  bases  para  tin 
proyecto  de  ley  de  casas  para  obreros  casas  baratas.  2d  ed.  Mad- 
rid, Sue.  de  M.  Minuesa  de  los  Rios,  igio.     2  v. 

2  Instituto  de  reformas  sociales.  Preparacion  de  las  bases  para  un  pro- 
yecto de  ley  prohibiendo  el  trabajo  noctumo  en  la  industria  de  la 
paniticacion.  Madrid,  Sue.  de  M.  Minuesa  de  los  Rios,  1Q13. 
287  p. 

^  Abreu  y  Bertodano,  Jose  Antonio  de.  Coleccion  de  los  tratados  de 
paz  .  .  .  Madrid,  D.  Pcralta,  H.  Martin  and  J.  de  Zuniga,  1740- 
1752.     12  V. 

*  Cantillo,  Alejandro  del.     Tratados,  convenios  y  declaraciones  de   paz 

y  comercio.     Madrid,  Alcgria  y  Charlain,  1843.     go8  p. 
^  Janer,   Florencio.     Tratados   de   Espana,   documentos    intemationales 
.  .  .  Madrid,  M.  Ginesta,  1869.     550  p. 

•  Olivart,  Marques  de.     Coleccion  de  tratados,  convenios,  y  documentos 

intemacionales.    .    .    .   Madrid,  Progreso  (also  Rev.  de  derecho  int. 
y  polit.  exterior)  1890-1908.     17  v. 


PUBLIC   INTERNATIONAL   LAW  I3I 

tion  of  treaties,  agreements  and  other  international  documents 
to  which  Spain  has  been  a  party.  Documents  since  1908  maj' 
be  found  in  the  periodical  of  international  law  edited  by  the 
same  publicist  (infra,  p.  133).  A  fragmentary  collection '  of 
treaties  was  published  by  the  government  in  1801,  in  three 
volumes.  The  treaties  concluded  between  the  United  States 
and  Spain  are  printed  in  Malloy's  "Treaties,  conventions,"  etc., 
1910,  II,  pages  1640-1723. 

Labra,^  in  his  work  on  the  Institute  of  International  Law, 
includes  (pp.  179-187)  a  bibliography  of  modem  Spanish 
works  on  international  and  public  law.  Olivarl  ^  compiled  a 
general  bibliography  of  international  law  which  is  really  a 
catalogue  of  his  former  private  library,  now  owned  by  Har- 
vard University. 

Although  in  recent  years  Spain  has  produced  no  great  works 
or  treatises  on  international  law,  her  early  writers,  especiallv 
those  of  the  sixteenth  century,  were  preeminent  among  the 
world's  great  jurists  and  international  lawyers.  Their  works 
are  still  cited.  Francisco  de  Vitoria  in  his  Rclectiones  ilieologi- 
cae  {supra,  p.  20)  discusses  various  questions  relating  to  rights 
of  war.  The  influence  of  Vitoria  is  discussed  at  length  in  the 
historical  sketch  of  "vSpanish  jurists  and  the  science  of  the  law 
of  nations ' '  by  Nys  in  the  1 9 1 2  Revue  de  droit  international  et  de 
legislation  comparee,  pages  360-387,  494-524,  614-642.  The 
article  presents  an  account  of  the  early  Spanish  international 
lawyers  up  to  the  sixteenth  century.  The  important  place  of 
Vitoria  in  the  history  of  international  law  is  also  attested  by  a 
recent  monograph  published  by  Abad.*  Soto  '  in  his  work, 
De  justitia  et  jure,  takes  up  the  questions  of  his  day  and  de- 
fends Charles  V  in  some  of  his  policies.  A  Jesuit,  Suarez, 
in  his  De  legihiis  ac  Deo  legislatorc  (supra,  p.  20)  deals  with  the 
law  of  races  in  general. 

'  Coleccion  de  los  tratados de  paz,  alianza,  comercio,  etc.     Madrid,  Real, 

1796-1801.     3  V. 
^  Labra  y  Cadrara,  Rafael  M.  de.     El  instituto  de  dcrecho  intemacional . 

Madrid,  Alfredo  Alonso,  1907.     574  p. 
^  Olivart,  Marques  de.     Bibliographic  du  droit  international.      2d  ed. 

Paris,  A.  Pedone,  1905-1910.     1,280  p. 
■*  Abad  y  Cavia,  F.     El  dominico  espafiol  Fray  Francisco  de  Vitoria  y 

los  principios  modemos  sobre  el  derecho  de  la  guerra.     Madrid. 

Hijos  de  R.  Alvarez,  191 1.     54  p. 
*  Soto,  Domingo.     De  justitia  et  jure.     Salamanca,  Joannes  Maria  y  Ger- 

ranova,  1566.     895  p. 


132  GUIDB    TO   THE    LAW    OF   SPAIN 

An  early  work  in  the  literature  of  international  law,  the 
accessibility  of  which  has  recently  been  enhanced  by  its 
translation  into  English,  is  the  treatise  by  Baltasar  de  Ayala ' 
on  the  rights  of  war  and  military  discipline.  Ayala  occupied 
a  position  somewhat  analogous  to  that  of  Judge  Advocate 
General  to  the  armies  of  Philip  II  of  Spain.  The  recent  Eng- 
lish edition  under  the  auspices  of  the  Carnegie  Institute  has 
brought  to  its  ser\'ice,  as  editor,  the  late  John  Westlake,  who, 
in  a  brilliant  introduction,  contributed  to  the  work  one  of  his 
last  literary  efforts. 

Reference  may  also  be  made  to  three  works  of  the  eighteenth 
century.  In  1746  Abreu  '  published  a  legal-political  treatise 
on  prize  law.  The  work  was  twice  translated  into  French  and 
enioyed  considerable  authority.  A  work  by  Olmeda,^  "the 
elements  of  the  public  law  of  peace  and  war"  is  not  without 
some  interest  at  the  present  time.  A  history  of  interaational 
law  was  published  in  1776  by  Marin,''  who  is  possibly  more 
profound  than  Almeda. 

It  is  worthy  of  note  that  the  most  original  Spanish  work  in 
the  field  of  international  law,  published  during  the  nineteenth 
century,  came  from  the  pen  of  a  woman,  Concepcion  Arenal." 
The  work  has  been  criticized  as  being  somewhat  sentimental 
and  theoretical,  but  its  originality  and  value  have  never  been 
doubted.  The  leading  treatise  of  the  nineteenth  century, 
a  work  of  considerable  reputation  to-day,  was  published  by 
Riquelme  "  in  1849.     Landa's  '  work  on  the  laws  of  war  from 

'  Ayala,  Baltasar  de.     De  jure  et  officiis  belli.     Madrid,  H.  Ortega  y 

Hdredes  Harra,  1793.     383  p. 
Same.     Classics  of  International  law.     Ayala.     Trans,  by  J.  B.  Bate. 

Edited   by  John  Westlake.     Washington,  Carnegie  Institute,  1912. 

2  V. 
^  Abreu  y  Bertodano,  Feliz  Jos6.     Tratado   juridico   politico  sobre  las 

presas  del  mar.     Cadiz,  Real  de  Marina,  1746.     335  p. 
'  Olmeda  y  Leon,  Jos6.     Elementos  del   derecho  publico   de  la  paz  y 

de  laguerra.     Madrid,  Viuda  de  Manuel  Fernandez,  1771.     2  v. 
■"  Marin  y  Mendoza,  Joaquin.     Historia  del  derecho  natural  y  de  gentcs. 

Madrid,  1776. 
'Arenal,  Concepcion.     Ensayo   sobre  el    derecho  de  gentes.     Madrid, 

Rev.  de  legislacion,  1879.     309  p. 
"  Riquelme,  Autonio.     Elementos    de    derecho    internacional    piiblico. 

Madrid,  Santiago  Sanque,  1849.     -  ^'■ 
'  Landa,  Nicasia.     El  derecho  de  la  guerra  conforme  a  hi  moral.     3rd  ed. 

Pomplona,  J.  Sorda,  1877.     336  p. 


PUBLIC   INTERNATIONAL   LAW  I  33 

a  moral  point  of  view  is  also  considered  one  of  the  best  pro- 
ductions of  his  time.     The  third  edition  appeared  in  1877. 

The  best  modern  general  treatise  for  reference  purposes, 
although  somewhat  lacking  in  originality,  is  that  of  Olivart,' 
the  fourth  edition  of  which  appeared  in  1904  in  four  volumes. 
An  abridged  edition  in  one  volume  was  published  in  1906. 
The  jurists  Torres  Campos-  and  Gestoso^  have  each  published 
elemental  treatises  on  international  law.  Fernandez  Prida,'' 
professor  of  international  law  in  the  University  of  Madrid, 
has  published  a  useful  collection  of  studies  dealing  with  topics 
of  both  public  and  private  international  law. 

A  treatise  on  international  maritime  law,  published  by 
Negrin,^  in  1888,  is  considered  authoritative  to-day.  A  guide 
for  the  Spanish  diplomat  by  Castro  "  contains  some  interesting 
discussions  of  legal  topics.  A  periodical  or  review  of  inter- 
national law  (Revixta  de  derecho  international  y  politica  exterior) 
was  established  at  Madrid  in  1905  by  Olivart,  who  assumed 
the  position  of  editor  and  director,  assisted  by  Ilerreros.  The 
numbers  appear  irregularly  and  devote  considerable  space  to 
the  reprinting  of  texts  of  treaties,  etc. 

To  supply  the  deficiency  of  works  on  international  law  by 
Spanish  authors,  translations  of  foreign  treatises,  such  as 
those  by  Fiore,  Bluntschli,  etc.,  with  Spanish  notes  are  cur- 
rently used. 

CONFLICT   OF   L.MVS 

As  in  the  case  of  all  continental  civil  codes,  although  with 
less  minuteness  than  in  the  German  01  Swiss  codes,  many  pro- 

'  Olivart,  Marqu^  de.     Tratado  de  derecho  intemacional  publico.     4th 

ed.     Madrid,  V.  Suarez,  1903-1904.     4  v. 
Same.     Derecho     intemacional     publico.     5th     ed.     Compendiada. 

Madrid,  Rev.  de  derecho  intemacional  y  polit.  Ext.,  1906.     416  p. 
-  Torres  Campos,  Manuel.     Elementos  de  derecho  intemacional  publico. 

2d  ed.     Madrid,  Femdndo  F6,  1904.     501  p. 
'  Gestoso  y  Acosta,  Luis.     Curso  elemental  de  derecho  intemacional  e 

hist6rica   de    los   tratados.     2d   ed.     Valencia,    Domenech,    1907. 

2  V. 

*  Fernandez  Prida,  Joaquin.     Estudios  de  derecho  intemacional  publico 

y  privado.     Madrid,  V.  Suarez,  1901.     311  p. 

*  Negrin,  Ignacio  de.     Tratado  de  derecho  intemacional  marilimo.     2d 

ed.     Madrid,  Vinda  €  hijos  de  Abienzo,  1883.     594  p. 
''Castroy  Casaleiz,  A.     Guiapracticadel  diplomatico  espanol.     Madrid, 
El  Correo,  1S86.     2  v. 


134  GUIDE  TO  THE   LAW   OF  SPAIN 

visions  on  the  conflict  of  laws  or  private  international  law 
are  incorporated  in  the  Spanish  civil  code.  These  provisions 
were  discussed  by  Eugene  Audinet  in  an  article  published  in 
volume  i8  of  Clunet  (1891),  pages  1106-1 129.  A  brief  dis- 
cussion, in  pamphlet  form,  of  questions  relating  to  the  conflict 
of  laws  in  matters  of  the  family  (jamilia)  and  successions 
under  the  code  was  made  in  1908  by  Rubira.' 

The  most  complete  and  useful  Spanish  treatise  on  private 
international  law  came  from  the  pen  of  Prof.  Conde  y  Luque,^ 
Rector  of  the  University  of  Madrid.  The  second  edition  was 
published  in  1910.  Another  useful,  but  considerably  more 
elementary,  work  is  the  recently  (191 3)  revised  edition  of 
Torres  Campos^  book.  Gestoso  ^  has  recently  (1913)  pub- 
lished an  extensive  treatise,  covering  all  branches  of  the 
subject. 

Attention  may  be  directed  to  the  introductory  work  of 
Prof.  Fernandez  Prida  ^  of  the  University  of  Madrid.  The 
collection  of  studies  by  the  same  author  [supra,  p.  133)  contains 
three  interesting  monographs  on  topics  in  private  international 
law.  It  is  interesting  to  note  that  despite  the  existence  of 
numerous  treatises  and  works  by  Spaniards  on  the  conflict 
of  laws,  translations  of  foreign  works,  notably  Fioie  and 
Asser,  are  employed  to  a  great  extent  by  Spanish  lawyers. 

The  legal  position  and  condition  of  foreigners  in  Spain  were 
discussed  in  some  old  French  treatises  now  out  of  date.  Torres 
Campos  in  the  i8th  volume  of  Clunet  (1891),  pages  108-119, 
published  a  sketch  of  the  history  of  the  position  occupied  by 
foreigners  in  Spanish  legislation.  Two  works  of  some  im- 
portance on  questions  of  nationality  and  the  law  of  aliens  were 

■  Rubira   Abarca,    Alfredo.     El   derecho    intemacional    privado   y   la 

jurisprudencia  espanola  en  materia  de  familia  y  sucesiones.     Madrid, 

Hijos  de  Reus,  1908.     Pamphlet. 
^  Conde  y  Luque,   Rafael.      Derecho    intemacional    privado.      2d  ed. 

Madrid,  V.  Suarez,  1910.     2  v. 
^  Torres  Campos,  Manuel.     Elementos  de  derecho  intemacional  privado. 

4th  ed.     Madrid,  F.  Fe,  1913.     583  p. 
*  Gestoso   y   Acosta,   Luis.     Nuevo    tratado    de   derecho  intemacional 

privado  .  .  .  civil,  procesal,  penal  y  mercantil.     Valencia,  Domcn- 

ech,  1913.     810  p. 
"  Fernandez    Prida,    Joaquin.     Derecho    intemacional     privado.     Val- 

ladolid,  M.  de  la  Cuesta,  1896.     312  p. 


CONFLICT   OF   LAWS  1 35 

published  in  1901  by  Castro,'  and  by  Conde  y  Luque,- 
respectively.  A  brief  account  of  the  position  of  foieign  cor- 
porations in  Spain,  by  Francisco  Lastres,  appeared  in  volume 
33  of  Clunet  (1906),  pages  273-278. 

The  subject  of  extradition  is  discussed  in  a  small  work  by 
Gascon,'  and  in  a  more  extended  treatise  by  Walls  '  in  which 
special  attention  is  given  to  procedure.  The  extradition 
treaty  between  the  United  States  and  Spain  now  in  force  is 
that  concluded  June  15,  1904.  It  may  be  found  in  Malloy's 
Treaties,  conventions,  etc.,  1910,  volume  II,  pages  1712-1718. 

Expulsion,  from  the  point  of  view  of  international  law  and 
of  Spanish  legislation,  is  discussed  in  a  work  by  Castro,'^  pub- 
lished in  1896  and  condensed  in  his  Estitdios  (supra),  at 
pages  165-169.  Torres  Campos  in  volume  29  (1902),  pages 
291-295,  and  Lastres  in  volume  37  of  Clunet  (1910),  pages 
369-374,  each  contributed  articles  in  French  on  the  right  of 
expulsion  of  foreigners  in  Spain. 

Justice  Cobian  of  the  Spanish  Supreme  Court  prepared  an 
interesting  account  of  the  law  relating  to  the  execution  of 
foreign  judgments  in  Spain  and  Spanish-American  countries 
for  the  Revista  dc  Icgislacion.  Each  country  receives  indi- 
vidual treatment.  The  article  was  translated  and  rearranged 
by  Ardenne  de  Tizac,  and  may  be  found  in  volumes  39  and  40 
of  Clunet  (1912),  1913,  pages  1059-1071,  89-101. 

It  may  here  be  noted  that  the  important  decisions  of  Spanish 
courts  on  questions  relating  to  private  international  law  are 
reported  at  regular  intervals  in  the  periodical  of  Clunet. 

'  Castro  y  Casaleiz,   Antonio  de.     Estudios    de    derecho  intemacional 

privado.     Conflictos    de    nacionalidad.     Condicion    de    exU-anjero. 

Madrid,  F.  Fe,  1900.     303  p. 
^  Conde  y  Luque,  Rafael.     Oficios  de  derecho   intemacional    privado. 

Nacionalidad.     Situacidn  del  extranjero.     Madrid,  Hi jos  de  Alvarez, 

1901.     577  p. 
'  Gasc6n  y  Marin,  ]osi.     La  extradici6n  ante  el  derecho  intemacional. 

Zaragoza,  Turmo,  1896.     161  p. 
*  Walls  y  Merino,   Manuel.     Extradicion    y  el  procedimiento   judicial 

intemacional  en  E-spafia.     Madrid,  V.  Suarcz,  1905.     512  p. 
"Castroy  Casaleiz,  Antonio  de.     El  derecho  de  expulsi6n  ante  cl  derecho 

intemacional  y  la  legislaci6n  espanola.     Ed.  oficiaL     Madrid,  i8g6. 


136  GUIDE  TO  THE   LAW   OF   SPAIN 

COLONIAL   LAW. 

After  the  acquisition  by  Spain  of  her  American  colonies,  the 
first  step  towards  devising  a  means  for  their  government  was 
the  establishment  of  the  Casa  de  la  contratacion  at  Seville 
in  1503.  Its  powers  were  described  by  Bernard  Moses  before 
the  American  Historical  Association  in  1894  (Annual  Report 
(1894),  pp.  93-123).  The  Casa  de  la  contratacion  was  later 
subordinated  to  the  Council  of  the  Indies,  established  in  1524. 
Spanish-America  was  governed  from  Spain  by  this  Council, 
under  authority  and  direction  of  the  king,  and  its  powers  were 
greatly  increased  by  succeeding  sovereigns.  The  administra- 
tion of  the  laws  in  the  colonies  was  under  the  charge  of  vice- 
roys or  captains-general.  The  viceroy,  his  powers,  and  the 
general  adminsitration  of  the  Spanish  colonies,  especially 
Mexico,  in  the  eighteenth  century  were  discussed  by  Donald  E. 
Smith  *  in  a  recent  work  (1913). 

The  office  of  adelantado  was  employed  in  mediaeval  Spain 
and  was  extended  in  1497  to  the  American  colonies  where  it 
became  of  some  importance.  Roscoe  H.  Hill  of  Columbia 
University  has  discussed  this  office  at  some  length  in  the 
December  (1913)  issue  of  the  Political  science  quarterly, 
volume  28,  pages  646-668.  Roscher  in  his  Kolonien,  Kolo- 
nial  politik  und  Auswandcrung  (3.rd  ed.,  Leipzig,  1885)  devotes 
a  few  sections  to  the  Spanish  colonial  system.  The  work  is 
interesting,  but  incomplete,  and  it  is  criticized  in  that  the 
writer  is  not  impartial  in  his  views.  Professor  Bounie  -  trans- 
lated these  sections  into  English  with  bibliographical  notes. 

The  various  laws  enacted  in  Spain  for  the  government  of 
the  colonies  were  first  collected  and  digested  by  order  of 
Philip  IV.  An  incomplete  compilation  was  made  in  1661  but 
the  first  "  Recopilacion  dc  Indias"  ^  did  not  appear  until  1680. 
A  second  edition  of  this  collection  or  compilation  was  made 

'  Smith,  Donald  Eugene.     The  viceroy  of  New  Spain.     Berkely,  Univ. 

of  Calif.     Press,  1913.     293  p. 
-  Roscher,    Wilhelm.     The    Spanish    colonial   sjstem.     Translation    by 

Edward  Gaylord  Bourne.     New  York,  H.  Holt  and  Co.,  1904.     48  p. 
'  Recopilacion  de  las  leyes  de  los  reinos  de  los  Indias  mandadas  imprimer 

y  publicar  por  la  magistral  catolica  del  Rey  Don  Carlos  II.     Madrid, 

i68o.     2  V. 


COLONIAL   LAW  137 

in  1756,  a  third  in  1774  and  a  fourth  in  1791.  The  last ' 
edition,  conveniently  indexed,  appeared  in  1841,  in  four  vol- 
umes. It  may  be  stated,  however,  that  the  older  editions  are 
more  reliable.  A  chronological  index  -  of  the  Spanish  colonial 
legislation,  covering  the  years  1680  to  1847,  was  published  in 
1848.  The  Recoj>ilaci6n  de  leyes  de  los  reinos  de  Indias  or,  as 
it  is  commonly  called,  the  Recopilacion  de.  Indias  was  a  digest 
of  the  laws,  royal  orders,  etc.,  issued  from  time  to  time  by  the 
Spanish  government  for  the  government  of  the  colonies,  and 
was  not  a  complete  code.  Hence,  it  was  necessary'  to  supple- 
ment it  by  the  general  and  common  law  of  Spain.  Thus,  the 
civil  law  of  Spain  became  the  fundamental  law  of  America,  but 
there  was  a  restriction  in  the  Rtxopilacian  de  Indias  (i.  40, 
t  I,  b.  2)  to  the  effect  that  no  law  or  statute  enacted  in  Spain 
should  be  obligatory  in  America  unless  expressly  commanded 
by  the  Council  of  the  Indies.  An  old  work  by  Murillo,'  in 
Latin,  discusses  the  manner  in  which  the  Spanish  laws  should 
be  received  in  the  Indies.  The  work  deals  primarily  with 
canon  law,  but  secular  law  on  this  point  is  discussed.  Walton 
in  his  "Civil  law"  (supra,  p.  36)  gives  a  brief  account  of  the 
laws  of  the  Indies  (pp.  518-526). 

The  leyes  de  hidias,  or  the  old  colonial  laws,  were  collected 
in  1889,  in  thirteen  volumes,  by  Guardia.*  The  work  was 
undertaken  at  the  request  of  and  by  support  of  the  Spanish 
government.  Rodriguez  San  Pedro, ^  assisted  by  several  col- 
laborators, compiled  in  1869  the  ultramarine  legislation  of  the 
nineteenth  century  into  16  volumes,  with  annotations.  In 
continuation  of  these  two  works  a  compilation  of  the  legis- 
lation  and   decrees   extended    to    the   colonics,    and  judicial 

'  Recopilaci6n  de  leyes  de  los  reinos  de  los  Indias  .  .   .  stlied.     Madrid, 

Boix,  1841.     4  V. 
'  Indice  cronologico  de  la  seric  de  leyes,  etc.  .   .  .  gobiemo  y  admin- 

istracti6n  de  las  provincias  de  Indias  desdc  1680  hasta  1847.     Madrid, 

1848. 
2  Murillo  Velarde,  Pctrus.     Cursus  juris  canonici  hispani  et  indici  .  .  . 

Matriti,  Fernandez,  1743.     2  v. 
Same.     3d.  ed.     Matriti,  Ruiz,  1791.     2  v, 
*  Guardia,  Migiiel  de  la.     Las  leyes  de  Indiiis  con  las  posteriores  a  esla 

codigo,  vigentes  hoy  .  .  .  Madrid,  Nunez.  1889.     13  v. 
°  Rodriguez  San  Pedro,  Joaquin.     Legislacion  ultramarina  concordada 

y  anotada.     Con  la  collaboraci6n  de   Antonio   Fernandez  Chorot, 

Eduardo  y  Antonio  Piera,  y  Manuel  Gonzalez  Junguitu.     Madrid, 

Viota,  Cubas  y  Vicente,  1865-1869.     16  v. 


138  GUIDE  TO   THE   LAW   OF   SPAIN 

decisions  rendered   in  colonial   litigation,  was   published   by 
Fernandez  Martin,'  in  10  small  volumes. 

There  are  no  treatises  or  expositions,  complete  and  satisfac- 
tory, on  colonial  law,  for  two  reasons — first,  all  authors  in  the 
past  have  treated  only  of  a  few  topics  and,  secondly,  there  are 
so  many  unedited  documents  lying  in  the  archives  of  the 
Council  of  the  Indies  in  Seville.  The  most  interesting  and  use- 
ful exposition  of  the  laws  of  the  Indies  is  that  by  Solozano,^ 
a  member  of  the  Consejo  de  hidias.  The  first  edition  appeared 
in  Latin.  There  are  various  Spanish  editions  of  equal  value. 
A  treatise  discussing  the  laws  anterior  to  the  Recopilacion  de 
Indias  was  published  by  Maurtua '  in  1 906.  The  reviews  of 
the  work  have  been  extremely  favorable.  A  valuable  his- 
torical account  of  the  imperial  legislation  in  the  ultramarine 
provinces  was  begun  in  1893  by  Fabie,^  but  only  the  first 
volume,  covering  the  early  years,  has  appeared.  Labra'^  in 
1 897  published  a  discussion  of  the  important  questions  at  that 
time  before  Spain,  in  relation  to  the  law  and  administration  of 
its  colonies.  A  work  of  especial  interest  to  the  United  States 
is  the  "Ultramarine  political  reform"  °  by  the  same  writer. 
The  public  and  administrative  laws  of  the  colonies  are  dis- 
cussed, with  an  extensive  treatment  of  the  international  aspect 
of  the  Cuban  question  in  1900.     The  law  of  1891  in  regard  to 

'  Fernandez  Martin,  Manuel.  Compilaci6n  legislativa  del  gobiemo  y 
administraction  civil  de  ultramar  arreglada  en  virtud  de  reales 
ordenes  de  8  de  febrero  de  i886  y  29  de  enero  de  1888  [y  27  de 
mayo  de  1893].     Madrid,  Lucas  Polo,  1888-1894.     10  v. 

^  Solorzano  Pereira,  Juan  de.     Disputationem  de  Indiarum  iure  sive  de 
iusta  Indiarum  occidentalium  inquisitione ,  etc.     Matriti,  F.  Marti- 
nez, 1629-39.     2  V. 
(ist  Spanish   edition);   Politica   Indiana.     Madrid,  Diego  Diaz  de    la 

Carrera,  1648.     2  v. 
2d  ed.     Ambereg,  H.  &  C.  Vesdussen,  1703.     536  p. 

'Maurtua,  Victor  Manuel.  Antecedentes  de  la  recopilaci6n  de  Indias 
.  .  .  Madrid,  B.  Rodriguez,  1906.     245  p. 

*  Fabie  y  Escudero,  Antonio  Maria.  Ensayo  historico  de  la  legislacion 
espaiiola  en  sus  estados  de  ultramar.  Madrid,  Sucesores  de  Riva- 
deneyra,  1896.     336  p. 

'  Labra  y  Cadrana,  Rafael  Maria  de.  Cuestiones  palpitantes  de  politica, 
derecho  y  administraci6n.  Discursos  por  .  .  .  Madrid,  A.  Alonso, 
1897.     502  p. 

'  Labra  y  Cadrana,  Rafael  Maria  de.  La  reforma  politica  de  ultramar. 
Discursosde  .  .  .  1869-1900.     Madrid,  A.  Alonso,  1901.     1,116  p. 


CANON    LAW  139 

the  administration  of  justice  in  the  Spanish  colonies,  with 
appendices  of  related  matters,  has  been  translated  by  the 
United  States  War  Department  {supra,  p.  87).  The  introduc- 
tion to  the  work  by  Sanchez  de  Ocana  is  also  translated. 

A  collection  of  the  laws,  ordinances  and  regulations  adopted 
from  time  to  time  by  the  Government  of  Spain,  relating  to  the 
disposition  of  public  lands  in  her  colonies,  was  compiled  in  1828 
by  Joseph  M.  White,'  at  the  direction  of  the  Attorney  General 
of  the  United  States,  on  the  occasion  of  the  settlement  of  land 
titles  in  Florida.  Spanish  public  land  laws  in  the  Philippines, - 
with  an  account  of  their  history  up  to  1 898,  were  compiled  bj' 
the  Forestry  Bureau  in  1901. 

Spanish  law  in  the  British  Empire  was  discussed  briefly  by 
Charles  E.  Reis  in  an  article  in  the  January,  191 4,  Journal  of 
the  Society  of  Comparative  Legislation,  pages  24-33. 

CANON    LAW 

Canon  law,  which  during  the  Middle  Ages  was  a  "common 
law"  for  the  whole  of  Europe,  has  exerted  a  lasting  influence 
upon  continental  law  and  has  played  an  important  part  in 
the  development  of  Spanish  secular  law.  A  translation  of 
the  section  of  Brissaud's  "History  of  French  private  law" 
dealing  with  the  sources  and  general  literature  of  canon  law 
is  included  as  part  IX  of  the  first  volume  of  the  Continental 
legal  history  series.  Reig  ^  in  1904  published  a  work  on  the 
influence  of  the  canon  law  in  Spain.  An  early  work  on  the 
institutions  of  canon  law  by  Gomez  Salazar  '  is  worthy  of 
mention.     The  same  author  has  also  edited  a  manual.^    Gol- 

'  House  Ex.  Doc.  121,  20th  Cong.,  2nd  sess.  Private  land  claims  in 
Florida,  by  Joseph  M.  White.  Washington,  Gales  and  Seaton,  1828. 
277  p. 

'  Spanish  public  land  laws  in  the  Philippines  and  their  historj'  to  Au- 
gust 13,  1898,  translated  and  compiled  in  the  Forestry  bureau  under 
the  direction,  of  George  P.  Aheni.  Washington,  Government  Print- 
ing Office,  1901.     61  p. 

'  Reig  y  Casanovas,  Enrique.  Cuestiones  canonicas.  El  derecho 
can6nico  en   Espana,   y  su  influencia.     Toledo,   Rodriguez,    1904. 

323  P- 
*  G6mez  Salazar,  Francisco.     Instituciones  de   derecho  can6nico.     3rd 

ed.     Madrid,  Hermanos  de  Minor,  1890.     3  v. 
'  Gomez  Salazar,  Francisco.     Manual  eclesiastico.      Madrid,  A.  Gomez 

Fuentenebro,  1872.     i  v. 


140  GUIDE   TO   THE   LAW   OF   SPAIN 

niayo's '  "Institutions  of  canon  law"  has  passed  through 
seven  editions,  the  last  in  1896. 

There  are  two  useful  treatises  on  ecclesiastical  law  in  gen- 
eral, with  special  reference  to  Spanish  law,  a  briefer  one  by 
Manjon  ^  and  a  five  volume  work  of  Morales.^  A  prize  work 
on  the  Spanish  law  in  its  relations  with  the  church  was  pub- 
lished in  1902  by  Lopez  Pelaez.^  The  same  author  made 
another  contribution  a  few  years  later  in  the  form  of  "eccles- 
iastical studies"."'  In  1914,  the  first  volume  of  a  new  work 
by  Campos"  made  its  appearance. 

An  interesting  article  by  a  Spanish  professor  appeared  in 
191 1  in  the  North  American  Review,  volume  193,  pages 
256-270,  on  the  present  conflict  between  church  and  state  in 
Spain.  The  religious  orders  and  corporations  were  discussed 
from  a  legal  point  of  view  by  Buitrago  '  in  1901.  A  short 
article  by  Andre  Tridon  appeared  in  the  forty-fourth  volume 
(1910)  of  the  Forum,  pages  272-279,  in  which  the  political 
relations  with  the  Vatican  and  the  present  symptoms  of  an 
economic  readjustment  are  discussed.  The  legal  situation 
of  the  Roman  Catholic  church  in  the  different  states  of 
Europe  and  America  has  been  discussed  by  Giron.'  He  has 
also  published  a  discussion  of  the  concordat  between  the 
Queen  and  the  Holy  See.' 

'  Golmayo,  Pedro  Benito.     Instituciones  del  derecho  canonico.     7th  ed. 

Madrid,  Gabriel  Sanchez,  1896.     2  v. 
^  Manjon,    Andreu.     Derecho   eclesiastico   general   y  espanol.     2d   ed. 

Madrid,  Huerfanos,  1891.     2  v. 
'  Morales  y  Alonso,  Juan  Pedro.     Tratado  de  derecho  eclesiastico  general 

y  particular  de  Espafla.     Madrid,  G6ngora,  1883-92.     5  V. 

*  Lopez   Pelaez,   Antolin.     El   derecho  y   la   iglesia.     Derecho    usual. 

Madrid,  Hijos  de  Gomez  Fuentenebro,  1911.     550  p. 

*  Lopez  Pelaez,  Antolin.     Estudios  canonicos.     Barcelona,  Gustavo  Gili, 

1906.      I  V. 
'  Campos  y  Pulido,  J.  M.  Legislacion  y  jurisprudencia  can6nica  novi- 

sima  y  disciplina  particular,  de  Espaiia.     Madrid,  Hijos  de  Reus, 

1914.     478  p. 
"  Buitragoy  Hernandez,  Joaquin.     Corporacionesreligiosas  .  .  .  Madrid, 

A.  R.  de  Castroviejo,  1901.     489  p. 
'  Gir6n  y  Areas,  Joaquin.     La  situacion  jiu'idica   de  la  iglesia   catolica 

en  los  diversos  estados  de  Europa  y  America.     Madrid,  V.  Suarez, 

1905-     379  P- 

*  Gir6n  y  Areas,  Joaquin.     La  reforma  del    concordato  celebrado  entre 

el  Santa  Sede  y  la  reina  de  EspaSa.     Madrid,  V.  Suarez,  1902.     i  v. 


CANON    LAW  141 

A  work  published  unck-r  authority  of  the  church  and  of 
special  use  for  members  of  the  clergy  and  modem  ecclesias- 
tical tribunals  is  the  treatise  of  ^liracle  de  Carbonell.'  This 
work  contains  directions  and  advice  for  the  clergy  in  cases  of 
marriage,  wills,  etc.  The  old  question  of  patronage  between 
the  Pope  and  the  Spanish  kings  has  been  thoroughly  dis- 
cussed in  the  work  of  Vazquez,-  which  was  awarded  a  prize 
offered  by  the  Minister  of  State  in  1882,  and  in  an  older  work 
by  M;is.^ 

Cadena  ^  published  in  1892  a  practical  treatise  on  ecclesias- 
tical procedure  in  civil  and  criminal  matters.  The  first  volume 
of  Gomez  Salazar  and  La  Fuente's  work  °  on  procedure 
appeared  in  a  second  edition  in  1890.  It  includes  matrimonial 
procedure.  The  same  authors  published  a  work  on  ecclesiasti- 
cal discipline  or  laws  of  conduct,"  supplementary  to  the 
proceeding.  The  proceedings  of  the  Inquisition  have  been 
discussed  in  a  work  of  Melgares  Marin.'  The  origin  and 
ecclesiastical  character  of  the  institution,  religious  persecu- 
tion, scandals  of  the  inquisition,  the  priests,  etc.,  are  some  of 
the  interesting  topics  discussed. 

Two  valuable  monographs  on  marriages  and  matrimony 
following  the  decree  ne  temere  have  come  from  the  pens  of 

'  Miracle   de    Carbonell,    Agustin.     El    parroco   y   el    curial.     Madrid, 

Hijos  de  Reus,  1904.     967  p. 
^  Vazquez  y  Lopez  Amor,  Antonio.     Examen  hist6rico-legaI  del  derccho 

de  patronato  de  la  corona  de  Espana  sobre  Ics  lugares  pios  de  Tierra 

Santa.     Madrid,  Hijos  de  Reus,  18S2.     214  p. 
'  Mas  y  Monz6,  Felipe.     Patronato  eclesiastico  de  los  reyes  de  Espana. 

Madrid,  Hijos  de  Reus,  187 1.     258  p. 
*  Cadena  y   Eleta,   Jose.     Tratado    te6rico-prdctico  de    precedimientos 

eclesiasticos  en   materia  civil   y   criminal.     Madrid,    h.    Aguardo, 

1891-1892.     2  V. 
^  G6mez  Salazar,  Francisco  and  La  Fuente,  Vicente  de  Tratado  te6rico- 

practico   de    procedimientos   eclesiasticos.     2d  ed.     Tomo    I,   Pro- 

cedimientos    matrimoniales.     Madrid,    G6mez    Fuentenebro,    1890. 

688  p. 
°  Gomez  Salazar,  Francisco  and  La  Fuente,  Vicente  de.     Secciones  de 

disciplina  eclesiastica  y  suplemcnto  al  tratado  de  procedimientos 

eclesiasticos.     5th  ed.     Madrid,   Gomez   Fuentenebro,    1894.     2   v. 
'  Melgares  Marin,  Julio.     Procedimientos   dc  la   inquisicion.     Madrid, 

L.  P.  Villavorde,  1886.     2  v. 


142  GUIDE  TO  THE   LAW   OF   SPAIN 

Aquilar '  and  Ferreres.^  The  former's  work  has  seen  three, 
and  the  latter's  five,  editions.  An  interesting  discussion  by  a 
prominent  lawyer,  Cabello,''  of  the  supreme  power  in  the 
public  law  of  the  church  mav  also  be  mentioned. 

'  Aquilar   Jim6nez,    J.     Nueva    legislacion   sobre   esponsales    y   matri- 

monios.     3rd  ed.     Madrid,  Hijos  de  Reus,  1909.     244  p. 
^  Ferreres,  Juan  B.     Los  esponsales  y  el  matrimonio.     5th  ed.     Madrid, 

Razon  y  Fe,  1911.     460  p. 
'  Cabello  y  Guillen  de  Toledo,  Alfonso.     La soberania  o  suprema  potestad 

en  el  derecho  publico  de  la  iglesia.     Madrid,  Hijos  de  J.  A.  Garcia, 

1895.     207  p. 


GLOSSARY 

Abandono.     Abandonment. 

Abintestato.     Intestate. 

Abogado.     Attorney  at  law,  law>'er,  barrister. 

.A.hogado  en  ejercicio.     Practicing  attorney. 

Abogado  del  estado.     Attorney  for  state. 

Abogado  de  oficio.     Attorney  appointed  to  j)k-ad  for  poor  litigants. 

Abogar.     To  argue  or  plead  a  case. 

Aborto.     Abortion. 

Absolucion  de  posiciones.     Answers  to  interrogatories. 

Acaparar.     To  comer  the  market. 

Acaparador.     One  who  corners  the  market. 

Accion.     A  share  of  stock,  lawsnit. 

Aceptacion.     Acceptance. 

Accptar  una  letra.     Honor  or  accept  a  bill. 

Aclaracion.     Ivxplanation,  illustration. 

Acomodacion.     Accomodation. 

Acreedor  escriturario.  A  creditor  who  proves  his  debt  by  means  of  a 
public  notarial  instrument. 

Acreedor  hipotecario.     See  hif>otcca. 

Acreedor  rcfaccionario.  A  preference  creditor.  One  who  has  advanced 
money  for  building  purposes. 

Actuaciones.     The  records  of  pleadings  of  a  case. 

Actuario.  Judicial  officer  who  authenticates  all  the  documents  in  the 
suit. 

A  cuenta.     On  account,  in  part  payment. 

Acusacion.     Impeachment. 

Acusar  la  rebeldia.     To  disclose  resistance  to  orders  of  a  judicial  authoirty. 

Adelantado.  A  mediaeval  Spanish  officer  formerly  employed  in  the 
American  colonies. 

Adjudicacion  en  pago.  The  appropriation  on  application  that  is  made 
judicially  of  the  real  or  personal  property  of  a  debtor  in  favor  of  a 
creditor  in  order  to  cover  the  amount  due  to  him. 

Administracion.  The  direction,  government  and  care  which  a  man  or 
corporation  has  of  the  property  under  his  charge  of  an  inheritance 
of  a  minor,  of  an  insane  person,  of  a  prodigal,  of  an  establishment  or 
of  an  individual;  so  that  everj-  guardian,  curator  or  executor  has  an 
administration.  Administration  is  in  reality  a  power  of  attorney 
or  mandate,  and  consequently  produces  the  same  obligations  and 
rights  as  this  contract. 

Adulterio.     Adultery. 

Advertencia.     Notice,  remark,  advice. 

Agente.     Agent. 

Agente  de  carabios.     Bill-broker. 

143 


144  GUIDE  TO  THE   LAW   OF  SPAIN 

Agotado.     Out  of  print. 

Albaceazgo.     Executorship. 

Alcabala.     Excise  or  tax  on  sales. 

Alcabala  del  viento.     Duty  paid  by  a  visiting  merchant. 

Alcalde  (of  a  town  or  city).  Head  of  a  district  of  a  city.  Tenientes 
alcaldes,  all  the  alcaedes;  alcalde  mayor,  president  of  the  tenientes 
alcaldes. 

Al  contado.     For  cash. 

Alguacil.  Bailiff,  lowest  officer  in  the  scale  of  officials  in  the  admin- 
istration of  justice. 

Alguacil  mayor.     SheriflE. 

Alianza.     Alliance. 

Alistamiento.     Levy,  conscription. 

Almacen.     Warehouse. 

Alniirantazgo.     Court  of  admiralty  jurisdiction. 

Almojarifazgo.     Duty  on  imports  or  exports. 

Alzamiento.     Making  a  higher  bid  at  an  auction. 

Allanamiento.     Trespass. 

Allanamiento  de  morada.     Breach  of  the  house  or  home. 

Allanarse  a  la  demanda.  Admission  by  defendant  of  allegations  in 
the  plaintiff's  complaint. 

Amenaza.     Threat. 

Amillaramiento.     Assessment  of  a  tax. 

Amortizacion.     Mortmain. 

Anotacion  preventiva.  A  preliminary  and  provisional  entry  of  a  claim 
upon  real  property.     See  Beneficio  de  inventario. 

Anticipaciones.     Advances. 

Anticresia.  Antichresis.  An  agreement  by  which  the  debtor  gives  to 
the  creditor  tlae  income  from  the  property  which  he  has  pledged,  in 
lieu  of  the  interest  on  his  debt. 

Aiiuario.     Year-book. 

Ano   economico.     Fiscal  year. 

Aparceria.     Partnership. 

Apelacion.     Appeal  to  a  higher  court  for  reversal. 

Apelacion  desierta.     Abandonment  of  an  appeal  after  it  is  entered. 

Aperciljimiento.  Order  of  a  judge  or  court  enforcible  by  contempt  pro- 
ceedings. 

A  plazos.     On  credit. 

Apoderado.     Attorney  (agent). 

Apremio.     Sale  of  attached  property  to  pay  the  decreed  debt. 

Aprendizaje.     Apprenticeship. 

Apuntamiento.     Extract  from  the  record. 

Arancel.     Fee,  tariff. 

Armada.     Na\')'. 

Arras.  Property  given  by  a  man  to  a  woman  either  before  or  after  their 
marriage.     It  must  not  exceed  one-tenth  of  what  he  possesses. 

Arrendamiento.     Lease. 

Arrendador.     Lessor. 

Arrendante.     Lessor. 


GLOSSARY  145 

Arrendatario.     Lessee. 

Asegurado.     Insured. 

Asegurador.     Underwriter,  insurer. 

Aseguramiento.     Insurance,  security. 

Asesinato.     Killing  with  premeditation,  etc.     Corresponds  to  our  murder 

in  the  first  degree. 
Asiento.     Entry  (on  records). 
Asociacion.     An  association  (company). 
Atentado.     Criminal  attempt. 
Atribucion.     Prerogative. 
Audiencia.     Court  of  appeal,  provincial  court. 
Autenticidad.     Authenticity — act  of  authentication. 
Auto.     Decree  or  decision  of  a  judicial  body  in  regard  to  some  question 

of  fact,  evidence  or  jiuisdiction.     Ever>'  judicial  decision  which  is 

neither  a  final  decision  (sentencia)  or  decisions  referring  to  matters 

of  procediu'e  {providencia) . 
Auto  acordado.     A  decision  rendered  by  a  consejo  or  a  superior  court  on 

some  point  applicable  to  its  authority  to  be  observed  as  a  precedent. 

Also  in  pliu'al  is  used  to  denominate  the  decrees  of  the  council  of 

Castile  that  were  embodied  in  the  Nueva  and  also  the   Novisima 

recopilacidn. 
Autor.     Principal  (in  a  crime),  author. 
Autorizacion.     Authorization. 
Autos.     Original  file  in  the  action. 
Auxilio.     Cooperation,  aid,  assistance. 
Aval.     Accommodation  endorser. 
Avaluo.     Appraisement  of  property. 
Aviso.     A  notice. 
Ayuntamiento.     Municipal    government    composed    of    a    mayor    and 

aldermen. 
Balnearios.     Public  baths. 
Bancarrota.     Bankruptcy. 
Bandera  de  paz.     Flag  of  truce. 
Bastanteo.     Examination  or  impeachment  by  coxmsel  of  the  authority 

or  right,  conferred  on  the  solicitor,  for  bringing  the  action. 
Beneficencia.     Poor  laws,  charity. 
Beneficio  de  inventario.     The  provisional  right  which  the  heir  has  of 

remaining  free  from  liability  to  pay  the  creditors  of  the  deceased 

beyond  the  value  of  the  inheritance. 
Beneficios.     Profits. 
Bienes.     Property  in  general. 
Bienes  gananciales.     Property  acquired  by  tlie  husband  and  wife  by  a 

common  title  during  their  marriage  and  while  tliey  live  together,  or 

what  the  husband  or  wife  or  either  of  them  during  their  marriage 

and  living  as  one  may  acquire  by  purchase  or  by  means  of  labor  and 

industr)',  as  also  the  fruits  of  the  private  property  that  each  brings 

to  the  marriage. 
Bienes  muebles.     Personal  estate. 
-Ta.-il"— 15 10 


146  GUIDE   TO  THE   LAW   OF  SPAIN 

Bienes  raices.     Real  estate. 

Bienes  reservables.  The  property  that  can  not  be  alienated  but  must 
be  reserved  for  certain  relatives. 

Bigamia.     Bigamy. 

Billete.     Ticket. 

Billete  de  banco.     Banknote. 

Boletin  oficial.     Official  gazette  or  bulletin  of  the  province. 

Bolsas  de  comercio.     Commercial  exchanges, 

Buena  fe.     Bona  fides. 

Bufete.     Lawyer's  office,  desk. 

Cadastre.  Official  assessment  of  the  quantity  and  value  of  the  real 
property  in  any  district,  made  for  the  purpose  of  justly  apportion- 
ing the  taxes  payable  on  such  property. 

Cadena  (perpetua,  temporal).  Confinement  with  chains  worn  at  ankles 
and  waist.     Considered  next  to  death  penalty  in  severity. 

Caducidad.     Lapse  (of  action  or  proceedings);  failure  to  take  effect. 

Cajero.     Cashier. 

Calumnia.  False  imputation  of  a  erime,  either  oral  or  written,  which 
was  the  cause  of  a  prosecution,  slander. 

Camara  de  compensacion.     Clearing  house. 

Cancelar.     Cancellation,  to  cancel  validly. 

Capacidad.     Capacity. 

Capellania  colativa.  The  capital  and  interest  of  a  foundation  that 
requires  its  possessor  to  be  a  clergyman. 

Careo.  Confrontation  of  the  prosecuting  witnesses  by  the  accused  for 
piu^ose  of  cross-examining  them. 

Cargador.     Consignor. 

Cargo.     Office,  btirden. 

Carta  de  fletamento.     Charter-party. 

Carta  de  naturaleza.     Letters  of  naturalization. 

Casacion.     Annulment  or  quashing  of  a  judgment. 

Caucion.     Bailbond  or  bail. 

Caudal.     Property,  wealth,  funds  (plural). 

Causa.     A  criminal  suit  or  prosecution,  consideration. 

Causahabiente.     Legal  successor  of  a  former  litigant. 

Cedente.     Transferor. 

Cedula.  Order  emanating  from  some  superior  tribunal,  promulgated  in 
the  name  and  by  the  authority  of  the  sovereign.     A  bond. 

Cedula  personal.  Legal  document  or  personal  certificate  every  Spanish 
citizen  must  possess. 

Cedula  real.     Ro>'al  letters  patent. 

Cencerrada.  A  disturbance  of  the  peace  in  the  form  of  mock  serenades 
with  horns  and  bells  upon  the  marriages  of  widows  or  mismated 
couples. 

Censatario.  Payer  of  groimd-rent,  or  one  who  pays  an  anntiity  out  of 
his  estate  to  another. 

Censo.  The  contract  whereby  the  right  is  acquired  of  receiving  an 
annual  pension  on  delivery  of  something.  The  right  itself  of  receiv- 
ing the  pension.  A  perpetual  annuity,  or  one  for  a  term  of  years. 
Ground  rent. 


GLOSSARY  147 

Censo  de  pobIaci6n.     Census. 

Censo  electoral.     List  of  voters. 

Censo  consignativo.     Consignative  ground-rent;  rents  from  one  holding 

land  of  a  debtor  for  benefit  of  creditor. 
Censo  de  por  vida.     Annuity  for  one  or  more  lives. 
Censo  enfit^utico.     Emphji;eusis,  a  contract  of  a  special  nature  in  regard 

to  use  and  occupation  of  land. 
Censo  frumentario.     Grain-rent. 
Censo  reservativo.     Reservative  ground-rent. 
Censualista.     An  annuitant ;  receiver  of  a  ground-rent. 
Censuario.     The  person  in  whose  favor  an  annuity  is  granted,  or  he  who 

has  the  right  to  receive  the  annuit)'.     (Some  ^Titers  use  the  word  to 

signify  the  party  who  pays  the  annuity.) 
Certeza.     Certainty. 
Cesi6n.     Cession,  transfer. 
Cesionario.     Transferee. 
Cesion  de  bienes.     Siurender  of  the  estate  of  an  insolvent  debtor  into 

the  hands  of  his  creditors. 
Citacion.     Citation. 
Citaci6n  de  remate.     Notice  to  debtor  of  intended  sale  of  his  goods  to  pay 

his  debts. 
Ciudadano.     Citizen. 
Coaccion.     Act  of  compulsion. 
Cobrar.     To  collect. 

^  ,  >Collection. 

CobranzaJ 

Codigo.     Code. 

Cohecho.     Bribery. 

Comercio.     Commerce. 

Comisi6n.     Commission. 

Comisionista.     A  factor,  commission  merchant. 

Comisionista  de  garantia.     Del  credere  factor. 

Comiso.     Every  description  of  confiscation.     The  reversion  of  the  useful 

ownership  of  an  etifiteulic  property  to  the  direct  owner  in  case  of  the 

party  charged  not  paying  him  the  tribute.     Property  confiscated  is 

also  styled  comiso. 
Comitente.     The  principal. 

Compaiiia  anonima.     A  limited  stock  company  or  business  corporation. 
Compania  colectiva.     Unlimited  partnership. 
Compafiia  de  seguros.     Insurance  company. 
Compaiiia  en  comandita.     A  limited  partnership.     A  partnership  where 

there  are  "silent  "  members  who  are  only  liable  to  the  amount  they 

invest. 
Comparencia  en  juicio.     Act  of  appearing  before  a  judge  and  demanding 

justice. 
Compendio.     Summarj%  abridgment,  compendium. 
Compensacion  de  cr^dito  liquido.     Set  off  producing  effect  of  payment. 
Competencia.     Jurisdiction. 
Competencia  il  icita.     Unfair  competition. 


148  GUIDE   TO   THE   lyAW   OF   SPAIN 

C6mplice.     Accomplice. 

Compra.     Purchase. 

Compraventa.     Bargain  and  sale. 

Comprobaci6n.     Proof,  comprobation. 

Con  arreglo.     In  conformity  witt. 

Concejal.     Member  of  a  public  board  or  city  council. 

Concejil.     Referring  or  concerning  to  concejal. 

Concejo.     Civic  body  of  a  small  town. 

Concejo  abierto.  Meeting  of  the  inhabitants  of  a  small  town  presided 
over  by  the  mayor  to  deliberate  upon  public  affairs. 

Concurrencia.  An  equality  of  rights  or  privileges  which  several  persons 
have  over  the  same  parcel  of  debtor's  property. 

Conctuso.  The  suit  instituted  either  by  the  debtor  or  by  the  creditors 
as  to  payment  of  debts.  The  meeting  of  creditors.  A  competition 
or  contest. 

Condicion  resolutoria.  The  condition  which,  on  being  fulfilled,  pro- 
duces the  revocation  or  invalidation  of  the  contract,  and  places  mat- 
ters in  statu  quo. 

Confianza.     Confidence. 

Confinamiento.     Confinement,  a  species  of  banishment. 

Congreso.     Lower  body  of  the  Spanish  parliament  or  cartes. 

Conocer.     To  take  cognizance,  to  try  a  cause  (by  a  cottrt). 

Conocimiento.     Judicial  notice,  cognizance,  bill  of  lading. 

Consejo.     Coimcil. 

Consejo  de  estado.  A  consultative  body  of  persons  chosen  by  the  king 
to  take  cognizance  of  matters  of  the  greatest  interest  to  the  govern- 
ment and  administration  of  the  kingdom,  both  home  and  foreign. 
Council  of  State. 

Consentimiento.    Assent,  consent. 

Considerandos.  Paragraphs  setting  forth  legal  grounds  on  which  a  judg- 
ment is  based. 

Consignatario.     Consignee. 

Conspiracion.     Conspiracy. 

Constitucion.     Constitution. 

Consulaje.     Fees  paid  to  consuls  by  all  merchant  vessels. 

Contenencia  a  la  demanda.     Demurrer. 

Contestacion  a  la  demanda.     Defendant's  plea,  or  answer. 

Contrabando.     Smuggling. 

Contratacion.     Trade,  commerce. 

Contrato.     Contract. 

Contribucion.     Tax. 

Contribuyente.     Taxpayer,  contributor. 

Convenio.     Pact,  agreement,  convention. 

Conyuges.     A  married  couple,  consorts,  husband  and  wife. 

Copia  original .  The  first  copy,  granted  and  signed  by  the  identical  notary 
who  attested  the  original  instrument. 

Corona.    Throne,  crown. 

Corporacion.     Corporation. 

Corredor.     Broker. 


GLOSSARY  1 49 

Corredor  de  cambios.     Exchange  broker. 

Correduria.     Brokerage. 

Corregidor.     Administrative  head  of  a  town,  mayor.    See  alcalde. 

Correo.     Post,  mail. 

Correspondencia.     Mail  (correspondence). 

Correspondiente  Indemnizacion.     Due  compensation. 

Cosa  juzgada.     Res  judicata. 

Costas.     Costs. 

Costumbre.     Custom,  duty. 

Criminologia.     Criminolog>''. 

Cualificado.     Qualified. 

Cuasi  contratos.     Quasi  contracts. 

Cuenta.     An  account,  reckoning,  computation. 

Cuenta-corriente.    Current  account. 

Cuenta  de  resacar  recambio.     Return  account. 

Cuenta  de  venta.     Account — sales. 

Cuerpo  del  delito.     Corpus  delicti. 

Culpable.     Guilt)-. 

Culto.     Worship,  religious  belief  (also  culture). 

Cumplimiento.     Performance. 

Curia.     Ecclesiastical  court,  tribunal. 

Ciuial.     Member  ecclesiastical  court. 

Cheque.     Check. 

Dar  cuenta.     To  answer,  to  give  account. 

Dar  fianza.     To  give  bail  or  pledge,  or  earnest  money  in  a  trade. 

Dar  fe.     To  attest,  to  certify. 

Dataria.  Datary,  office  of  the  chancery  at  Rome  where  the  Pope's  bulls 
are  expedited. 

Deber.     Duty,  obligation. 

Deber  (verb).     To  owe,  ought. 

Debido  ciu"so.     Due  course. 

Declaracion.     Deposition. 

Declinatoria.  Plea  to  jurisdiction  before  the  judge  who  has  not  juris- 
diction in  order  for  him  to  abstain  and  to  send  record  to  proper  court. 

Decreto.     Order  similar  to  cedula  in  ecclesiastical  matters. 

Dedicarse.     To  practice  (a  profession) 

Defensa.     Defense. 

Defraudaciones.     Frauds. 

Delincuente.     Offender,  criminal. 

Delito.  One  of  the  two  divisions  of  crimes.  This  is  the  greater  and  com- 
prehends crimes  dangerous  to  tlie  person  and  property,  violations 
of  laws  done  intentionally.     Felony. 

Delito  consumado.     Consummated  crime. 

Delito  frustrado.  Crime  not  consummated  on  account  of  a  cause  purely 
independent  of  the  will  of  the  actor. 

Delito  de  incendiar.     Arson. 

Demanda.     The  written  declaration  or  complaint  in  pleading. 

Demencia.     Lunacy. 

Derecho.     Right,  law  in  general,  body  of  law. 


I50  GUIDE  TO  THE   LAW   OF  SPAIN 

Derecho  administrativo.  Law  of  administration  of  public  business  and 
the  government. 

Derecho  civil.     Civil  law. 

Derecho  can6nico.     Ecclesiastical  or  canon  law. 

Derecho  comiin.  The  civil  or  general  law  of  a  place,  as  distinguished 
from  the  particular  or  municipal  law  of  a  province,  district,  or  city, 
or  from  any  special  or  privileged  law,  as  the  militarj',  ecclesiastical 
and  commercial. 

Derecho  contencioso-administrativo.     See  jurisdiccidn. 

Derecho  de  gentes.  Natural  law,  such  as  prevailed  among  foreign 
nations,  as  contrasted  with  the  Roman  law.     International  law. 

Derecho  foral.     Local  statutory  law.     Special  law  of  certain  provinces. 

Derecho  intemacional  privado.     Conflict  of  laws. 

Derecho  intemacional  publico.     International  law. 

Derecho  no  escrito.     Unwritten  law,  established  custom. 

Derecho  militar.     Military  law. 

Derecho  mercantil.     Commercial  law. 

Derecho  penal.     Criminal  law. 

Derecho  politico.  Political  science  (in  broad  sense).  Constitutional 
law  (in  the  restricted  sense). 

Derecho  procesal.     Procedural  law. 

Derecho  real.  The  inherent  right  to  a  thing,  so  that  it  is  not  extin- 
guished by  the  death  of  him  who  possesses  it,  but  which  always 
exists  therein  into  whosoever  hands  the  thing  may  be  transferred. 

Derogaci6n.     Repeal. 

Desahucio.     Ejectment  of  tenant  at  expiration  of  term. 

Desamortizar.     To  disentail,  to  break  an  entail. 

Descuento.     Discount. 

Desembolso.     Disbursement. 

Desempeno.  Performance,  act  of  redeeming  a  pledge,  exercise  (of  a  pro- 
fession). 

Desistimiento.     Voluntary  abimdonnicnt  of  the  litigation. 

Destierro.     Exile,  judicial  banishment. 

Detencion.     The  arrest. 

Detencion  ilegal.     False  imprisonment. 

Deten.°r.     To  arrest. 

Deuda.     Debt. 

Deudor.     Obligor,  debtor. 

Dia  de  trabajo.     Working-day. 

Diario  de  avisos.     Official  gazette  of  the  locality  or  district. 

Diccionario.     Dictionary,  encyclopedia. 

Dictamen  pericial.     Opinion  of  expert  witness  in  a  trial. 

Diligencia.     Execution  or  performance  of  an  order  of  tlie  judge. 

Dinero.     Money. 

Diputado.  Representative  in  tlie  Cortes  elected  by  the  people  in  the 
electoral  districts  in  which  Spain  is  divided  (as  distinguished  from 
a  senator). 

Discordia.     Disagreement  of  the  judges. 

Disfrutar.     To  gain  advantage,  reap  benefits,  enjoy. 


GLOSSARY  151 

Divorcio.     A  divorce. 

Doctrina  legal.  Rules  of  law  which  the  Supreme  Court  draws  up  in  its 
judgments  in  order  to  found  its  decrees 

Documental.     Documentary. 

Docuniento.     Instrument,  document. 

Docunicnto  negociablc.     Negotiable  instrument. 

Domiciliado.  Person  who,  though  not  sui  juris,  resides  permanently 
in  and  forms  part  of  tlie  house  of  a  vecino. 

Domicilio.  Permanent  dwelling  place  of  a  vecino  and  domiciliado,  domi- 
cile. 

Dominio.     Ownership. 

Dominio  directo.  The  right  which  a  man  has  of  concurring  in  the  dis- 
posal of  a  tiling  the  produce  whereof  he  has  assigned;  or  of  receiving 
a  certain  pension  or  annual  tribute  in  acknow'Iedgement  of  his 
seigniorial  right  or  superiority  over  the  property.  The  right  of 
superiority  of  a  real  estate  without  the  right  of  useful  ownership. 

Dominio  supremo.     Eminent  domain. 

Dominio  util.  The  right  of  receiving  all  the  fruits  of  a  thing  upon  paying 
a  contribution  or  tribute  to  him  who  preserves  therein  the  direct 
ownership. 

Dotacion.     Revenue. 

Duelo.     Duelling. 

Diiplica.     Rejoinder. 

Edicto.  Public  order  of  a  judge  or  coiu-t  issued  on  default  of  a  party  or 
to  notify  a  large  number  of  people  of  an  auction  sale,  etc. 

Efecto.     Effect,  consequence. 

Efecto  devolutive.  The  cognizance  which  by  means  of  an  appeal  the 
superior  judge  takes  of  the  decrees  of  the  inferior  court  without  sus- 
pending their  execution,  but  referring  them  back  for  reconsideration. 

Efecto  suspensivo.  The  cognizance  which  in  virtue  of  an  appeal,  the 
superior  Judge  takes  of  the  decrees  of  tlie  inferior,  suspending  their 
execution. 

Efectos.     Effects,  movables,  drafts,  assets. 

Efectos  en  cartera.     Bills  in  hand. 

Efectos  piiblicos.     Public  seciuities. 

Efectos  a  pagar.     Bills  payable. 

Efectos  d  recibir.     Bills  receivable. 

Ejecucion.     Execution. 

Ejecutoria.  Public  document  in  which  a  final  judgment  is  transcribed. 
Final  decree. 

Ejercer.     To  practice  (a  profession). 

Ejercito.     Army. 

Embargo.     Attachment  of  debtor's  property,  sequestration,  embargo. 

Embajador.     Embassador 

Emitir.     To  issue. 

Empate.     Tie  vote. 

Emplazamiento.  Summons  of  the  judge  directed  to  the  defendant  to 
appear  and  answer  the  claim. 

Empleado.     Employee. 


152  GUIDE  TO  THE   LAW   OF  SPAIN 

Enajenacion.     Alienation. 

Enajenar.     To  alienate,  transfer. 

Encargado  de  negocios.     Charge  d'affaires;  agent,  attorney  (Mex.). 

Encubridor.     Accessory  after  the  fact,  concealer,  etc. 

Endosante.     Indorser. 

Endosatario.     Indorsee. 

Endoso.     Indorsement. 

Enfiteusis.     Lease. 

Enjuiciamiento.     Procedure. 

Enmienda.     The  correction  of  some  error  or  defect.     The  satisfaction  and 

payment  of  losses  incurred.     The  revocation  or  correction  of  some 

sentence. 
Entrega.     Delivery. 
Entre  si.     Inter  se. 
Equipaje.     Baggage. 
Error.     Mistake. 

Es  bastante.     "  It  is  sufficient, ' '  formula  used  in  certifying  to  sufficiency. 
Escalamiento.     Entrj-  into  a  building  by  sneaking  into  it  or  climbing  the 

walls  as  opposed  to  burglarious  entry. 
Escribano.     Clerk  of  court  of  first  instance. 
Escrito.     Writing. 
Escritor.     Writer,  author. 
Escritura  piiblica.     Document  executed  with  legal  formality  before  a 

notary' . 
Espera.     Extension  of  time  in  a  debt,  adjournment. 
Estado.     State,  commonwealth. 
Estado  seglar.     Layman,  secular  or  lay  rank. 
Estatuto.     Statute  law.     Plural  used  to  name  a  charter  or  by-laws  of  a 

company,  etc. 
Estafa.  Swindle. 
Estelionato.    A  fraud,  generally  applied  to  the  fraudulent  sale  or  mortgage 

of  property  previously  sold  or  mortgaged. 
Estrago.     Malicious  destruction  of  property. 
Estupro.     Seduction,  constupration. 
Eviccion.     Eviction,  implied  warranty  of  title  in  sales. 
Examen.     Examination. 
Excepcion.     Defense,  plea. 
Excepcion  delatoria.     Dilator)'  plea. 
Excepcion  perentoria.     Demurrer. 
Excusion.     The  exhaustion  of  the  judicial  or  extrajudicial  proceedings 

so  as  to  have  recovered  all  the  value  of  the  debtor's  property.     Also 

the  liquidation  of  the  debtor's  estate  for  benefit  of  his  creditors. 
Exhorto.     Letters  requisitorial  sent  by  one  judge  to  another 
Expedidor.     Shipper,  consignor. 
Expendicion.     Sale. 
Expropiado.     Dispossessed. 
Expropiacion  forzosa.     Dispossession  from  ownership  for  public  use  or 

by  eminent  domain. 
Extinci6n.     Extinction. 


GLOSSARY  153 

Extradici<5n      Extradition. 

Extranjcro.     A  foreigner  (different  country).     See  Forastero. 

Extrauamiento.     Expulsion. 

Extravio.     Deviation. 

Factor.     Manager,  factor. 

Fadiga.  The  right  possessed  by  the  seignior  in  the  direct  o\^•nership 
whenever  the  thing  bailed  or  leased  is  alienated,  so  as  to  retain  it 
for  the  sum  that  the  purchaser  offers. 

Fallo.  Synonymous  with  auto  or  sentencia,  but  especially  the  part  of 
the  latter  in  which  the  judge  or  court  actually  renders  its  decree  or 
decides  the  questions  in  dispute  is  called  the /alio.  So  called  because 
that  part  by  law  must  begin  with  the  word/a/Zo. 

Falta.     Division  of  lesser  crimes,  misdemeanor. 

Falta  de  aceptacion.     Nonacceptance. 

Falta  de  pago.     Nonpayment. 

Falsificacion.     Counterfeiting,  also  forgery. 

Fazafia.     Sentence  given  in  a  suit. 

Fecha.     Date. 

Fechado.     Dated. 

Feligresia.     District  of  a  parish,  its  inhabitants. 

Fianza.     Bond  (criminal  law),  seciuity. 

Fideicomisario.  A  devisee  or  legatee  who  is  to  deliver  the  devise  or 
legacj'  at  some  future  time  to  another;  also  a  legatee  beneficially 
interested  in  property  left  to  another  in  trust;  also  an  executor; 
cestui  que  trust. 

Fideicomiso.     Trust,  tlie  res  of  tlie  trust,  feoffment  to  use. 

Fiduciario.     Legatee,  trustee  or  the  heir  of  a  legatee  trustee. 

Fieldad.     Sequestration,  security. 

Filosofia.     Philosophy. 

Firma.     Signature,  partnership. 

Firma  entera.  The  complete  signature  comprising  both  the  christian 
and  surname. 

Fiscal.     State's  attorney,  prosecutor,  etc. 

Fiscalia.     Business  or  profession  of  a  fiscal. 

Fletamento.     Affreightment. 

Fomento.     Development,  patronage. 

Fomento,  ministerio  de.  Department  of  public  works,  education,  com- 
merce, agriculture  and  manufactures  in  Spain. 

Fondos.     Funds. 

Foral.  (Used  as  adjective,  with  nouns  like  "law,"  "government,"  etc.) 
Special  rights  or  the  law  of  a  province  or  town  xvhich  was  originally 
granted  by  the  king  in  their  charters.     Local  or  provincial  law. 

Forastero.  Foreign  as  between  different  provinces  of  same  country.  See 
exiroTtjero. 

Formacion  de  causa.     Process  of  law. 

Frutos  en  specie.     Fungible  goods. 

Fuera.     Out,  outside  of. 

Fuero.     Statutory  law,  compilation  of  laws,  jurisdiction  of  a  court. 


154  GUIDE  TO  THE   LAW   OF   SPAIN 

Fuerza  mayor.     Vis  major  (as  "  Act  of  God  "  l . 

Funciones  fiscales.  Duties  of  the  solicitors  for  the  state  in  the  superior 
and  supreme  courts  in  the  interests  of  the  public  treastuy  and  other 
public  causes. 

Fundacion.     Revenue  established  for  any  purpose,  a  foundation. 

Gaceta  de  Madrid.  Official  gazette  (daily)  of  the  Spanish  government. 
Contains  texts  of  new  laws,  orders,  etc.  of  the  decisions  of  the  Su- 
preme Court. 

Gananciales.    See  bienes  gananciales. 

Garantia.     Warranty. 

Garrote.  The  screw  or  apparatus  used  in  Spain  for  the  execution  of 
criminals. 

Gasto.     Expenditure,  cost. 

Gastos.     Expenses,  disbursements,  charges. 

Giro.     Draft  note,  bill,  etc.     (general  word). 

Gobiemo.     The  government. 

Golfo.  Vagabond,  outlaw,  term  applied  to  the  degenerate  scum  of  a 
city. 

Gravamen.     Lien,  encumbrance,  mortgage,  charge. 

Haberes.    Wealth. 

Habil  (dia).     Day  on  which  the  coiuls  sit. 

HabiUtaci6n  del  letrado.  The  formal  admission  by  the  State  of  a  lawyer 
to  practice  in  the  courts. 

Habitante.     Resident,  but  not  necessarily  citizen. 

Hacer  fe.  To  acknowledge,  to  certify.  The  sufficiency  of  any  state- 
ment or  writing,  as  proof,  is  acknowledged  when  it  is  said  that  it 
makes  faith. 

Hacienda.     Public  property  of  all  kinds,  land,  also  public  revenue. 

Hacienda  piiblica.     Public  treasury,  finances. 

Heredero.     Heir. 

Heredero  legal.     Heir  at  law. 

Heredero  fiduciario.     Heir  trustee. 

Herencia.     Inheritance. 

Hijo.     Child  or  other  descendant,  son. 

Hipoteca.     Mortgage,  mortgage  contract. 

Holografo  (also  olografo).  Will  or  last  testament  of  a  person  wholly 
written  in  his  own  hand,  signed  and  dated  by  testator. 

Hombre  bueno.  Arbitrator  in  the  attempt  to  arbitrate  legal  disputes 
before  suit  is  actually  begun. 

Homicidio.     Manslaughter. 

Honorario.     Fee. 

Huelga.     A  strike,  lockout. 

Hurto.     Theft,  thievery. 

Imprudencia.     Negligence. 

Impuesto.     Tax,  impost. 

Incendio  premeditado.     Arson. 

Incidente.  Question  that  arises  between  the  parties  in  litigation  during 
the  coiu'se  of  the  principal  action.     Interlocutor)'  application. 

Incoar  un  juicio.     To  bring  suit. 


GLOSSARY  155 

Incommunicado.     Prisoner  in  the  solitary  confinement  in  which  he  is 

placed  after  arrest. 
Indefension.     Unfairness;  lack  of  defense  caused  by  fraud. 
Indeimiizacion.     Damages  recovered  by  plaintiff. 
Indultar.     To  pardon,  to  exempt. 
Industrial.     Person  engaged  in  industries. 
Infanticidio.     Infanticide. 
Informa.     Pleading,  report. 
Informe  pericial.     Expert  evidence. 
Infracci6n.     Violation,  breach. 

InliAbil  (dia).     The  day  on  which  the  courts  do  not  sit,  vacation  day. 
Inhabilitacion.     Disability,  disqualification. 
Inhibitoria.     Motion  before  a  judge  having  jurisdiction  for  removal  of 

cause  from  court  not  having  jurisdiction. 
Inhuraacion.     Interment. 
Injuria.     Slander  and  libel,  outrage. 
Inscripcion.     Record  as  public  record  for  mortgages,  etc. 
Interdiccion  civil.     Deprival  of  all  rights  tuider  the  civil  code  over  the 

family  or  property  of  the  condemned. 
Interdicto  de  rccobrar.     Sunmiary  proceeding  to  recover  possession  of 

converted  chattel. 
Interes.     Interest. 

Interes  legal.     Interest  fixed  by  law. 
Interes  convencional.     Stipulated  interest. 
Jomal  diario.     Daily  wages. 
Jubilacion.     Retirement  of  an  officer  or  employee  of  the  government  on  a 

pension  or  reduced  pay  on  arrival  at  certain  age. 
Juego.     Gambling,  game. 
Judicatura.     Judiciary. 
Juez.     A  Judge. 

Juez  arbitrato.    Arbitrator,  umpire. 
Juez  de  letras  (juez  Ictrado).     A  justice  of  the  peace  of  a  small  district. 

who,  being  a  coimsellor  at  law,  has  more  authority  in  certain  cases 

than  other  justices. 
Juez  instructor.     Examining  magistrate  in  criminal  prosecutions.     Inves- 
tigation carried  on  while  the  accused  is  in  solitary  confinement. 
Juez  de  priraera  instancia.     Trial  judge. 
Juez  ponente.     The  judge  who  draws  up  in  writing  the  opinion  of  the 

court,  himself  and  colleagues. 
Juicio.     A  suit,  act  of  judging,  judgment,  proceeding. 
Junta.     Council,  board,  meeting,  convention. 
Junta  de  comercio.     Board  of  trade. 
Jimta  de  gobiemo.     Executive  committee. 
Jurado.     Jiuy. 
Juramento.     Oath. 

Juramento  asertorio.     Declaratory  oath. 
Juramento  decisorio.     Oath  taken  by  deponent  when  party  seeking  his 

deposition  admits  whatever  .s:iid  as  incontrovertible  evidence. 
Juramento  falso.     Perjurj-. 


156  GUIDE  TO  THE   LAW   OF  SPAIN 

Juramento  indecisorio.     Oath  that  can  only  hurt  the  deponent. 

Jurisdiccion.     Jurisdiction. 

Jurisdiccion  contencioso-administrativo.  Jurisdiction  in  which  are  de- 
cided questions  in  litigation  arising  between  the  administration 
acting  within  its  jurisdiction  and  individuals  who  consider  their 
rights  damaged  by  the  act  thereof. 

Jurisprudencia.     Court  decisions,  "judge  made"  law,  legal  science. 

Jiu-ista.     Jurist. 

Jurisconsulto.     Jurist. 

Justicia.     Justice. 

Juzgado.    Court  of  first  instance. 

Legitima.  That  part  (two-thirds)  of  the  paternal  or  maternal  estate  of 
which  the  testator  can  not  disinherit  his  children  without  legal 
cause. 

Legitimo.     Legitimate. 

Legislacion.     Legislation. 

Lego.     A  novice.     Laybrother  in  monastery. 

Lesa  majestad.     Leze-majesty  or  high  treason. 

Lesi6n.     Personal  injury  inflicted  by  violence. 

Letra  de  cambio.     Bill  of  exchange. 

Letrado.     Lawyer. 

Levantamiento.     Revocation,  withdrawal. 

Ley.     Statute,  act. 

Liberaci6n.     Discharge. 

Libertad.     Liberty. 

Librado.     Drawee. 

Librador.     Drawer. 

Licensia.     Permission. 

Licito.     Licit,  lawful. 

Litigar.     To  sue,  to  litigate. 

Litis  pendencia.     Lis  pendens. 

Loco.     Lunatic,  insane  person. 

Magistrado.     Magistrate. 

Malafe.     Bad  faith. 

Malicia.     Malice. 

Malversaci6n.     Maladministration. 

Mancebo.     Assistant. 

Mancomunadamente.    Jointly,  by  common  consent. 

Mandamiento.     Order  by  judge  to  subordinate  officer. 

Maquinacion.     Artifice. 

Marca  (de  fabrica).     Trade  mark. 

Masa  de  la  quiebra.     The  total  assets  of  bankrupt  estate  liable  to  debts. 

Matrimonio.     Marriage. 

Matriz  (escritura).  The  original  instrument  or  document,  stub  of  check 
book. 

Mayor  edad.    Majority,  full  age. 

Mayoria.     Majority. 

Media  firma.     Surname. 

Medida.    Measxu-e. 


GLOSSARY  157 

Mejora.  Advantage,  or  the  portion  of  the  estate  reserved  as  legllima  by- 
law which  the  parent  or  testator  may  appoint  to  a  particular  or 
child  descendant. 

Menor  edad.     Minority,  infancy. 

Ministro  de  hacienda.     The  Secretary  of  the  Treasury. 

Moneda.     Coins,  metallic  money. 

Morada.     Dwelling-house. 

Mostrarse  parte.  To  intervene  or  take  part  voluntarily  in  an  official 
proceeding. 

Muerte.     DeaOi. 

Mujer  casada.     Married  woman. 

Multa.     Fine,  forfeit. 

Municipio.     Municipality. 

Nacer.     To  be  bom. 

Nato.     Used  witli  and  to  mean  ex  officio. 

Naturaleza.     Nationalir>',  naturalization. 

Negado.     Incapable,  unfit. 

Negar.     To  deny,  to  refute  an  accusation. 

Negligencia.     Negligence. 

Nombrado.     Nominee. 

Nombrador.     Nominator. 

Norabramiento.     Appointment. 

Nominador.     Nominator. 

Nominilla.  Warrant  or  certificate  enabling  a  pensioner  of  an  office  to 
draw  his  dues. 

Nomino.     Nominee. 

Nomografo.     Nomographer,  a  writer  on  laws. 

Norma.     Standard. 

Notario.     Notar>-. 

Noto.     Bastard,  illegitimate. 

Novacion.    Novation. 

Novel.     New,  inexperienced. 

Nulo.     Invalid,  null. 

Numulario.     A  banker. 

Nunciatura.     Office  or  house  of  a  nuncio. 

Nuncio.     Envoy  or  ambassador  from  the  Pope  to  Roman  Catholic  princes. 

Nuncupativo.     Nuncupative. 

Obligacion.     Bond;  also  a  contract  of  obligation. 

Obligaci6n  de  probar.     Bxuden  of  proof. 

Obligado.     Obligation. 

Obrero.     Workman. 

Oferta.     Tender. 

Oficina  de  correos.     Post-office. 

Oficina  de  patentes.     Patent  office. 

Oido.    A  hearing. 

Olografo.     See  hoUgrafo. 

Ordenamiento.  Orders  emanating  from  the  king  and  differing  from 
cedula  only  in  form  and  in  mode  of  promulgation. 

Otorgar.     To  execute  an  instrument,  to  authorize. 


158  GUIDE  TO  THE   LAW   OF   SPAIN 

Otorgante.  Grantor,  party  who  signs  and  executes  any  notarial  instru- 
ment. 

Otrosi,  "  Moreover. "  Technical  word  used  to  introduce  a  paragraph  con- 
taining matter  different  from  the  principal  object  of  the  docixment. 

Pacto.     Agreement,  pact. 

Pagare.     Promissory  note. 

Pago.     Payment. 

Pago  parcial.     Installment. 

Parafemales  (bienes).  Parapherna.  Goods  brought  by  wife  to  husband 
over  and  above  her  dowTy. 

Parceria.     See  Aparcerla. 

Parricidio.  Parricide.  Includes  all  degrees  of  consanguinity  as  well  as 
the  relation  of  husband  and  wife. 

Parroco.     Rector  or  incumbent  of  a  parish,  a  priest. 

Parte  beneficiada.     Accommodated  party. 

Parte  por  acomodacion.     Accommodation  party. 

Particular.     Private  person. 

Partido.  One  of  the  judicial  districts  into  which  the  provinces  are 
divided;   an  agreement. 

Parto.     Childbirth. 

Patente  de  invencion.     Patent. 

Patria  potestad.     Parental  power. 

Patronato.     Patronage,  patronship. 

Patrono.     Master,  employer. 

Paz.     Peace,  truce. 

Peculio.  Estate  or  property  which  a  child  possesses  as  separated  from 
the  property  of  his  father. 

Pena.     Punishment,  penalty. 

Pension.     Rent  or  annual  tribute  imposed  on  landed  estate.     Pension. 

Perito.     An  expert. 

Perjuicio.     Prejudice. 

Perjuicio  (sin).     Without  prejudice. 

Perjurio.     Perjury. 

Personarse  en  juicio.     Appearance  of  defendant  by  attorney  in  court. 

Personas  juridicas.  Juridical  persons.  Corporations,  associations  and 
institutions  of  public  interest. 

Pesquisa.  Inquisition,  name  for  old  form  of  prosecution,  search,  investi- 
gation. 

Peticion.     Petition. 

Picota.     Pillory. 

Pirateria.     Piracy. 

Pleiteante.     Litigant. 

Pleitear.     To  sue,  to  go  to  court. 

Pleito.     Civil  lawsuit. 

Plus  minusve .     More  or  less. 

Plus  peticion.     Excessive  relief  or  damages. 

Poder.     Power  of  attorney. 

Poligamia.     Polygam)'. 

Politica.     "The  art  of  governing  the  people." 


GI.OSSARY  159 

Policia.     Police. 

Portador.     Bearer  (as  negotiable  instrument  payable  to). 

Porteador.     Carrier. 

Posadero.     Innkeeper. 

Posicion.     An  interrogatory  (in  writing). 

Postura.     Offer  or  bid  at  an  auction. 

Prdctio.     Practice. 

Pragradtica.     See  ordenamiento. 

Predio.     An  inheritance,  land  or  immovable  possession. 

Predio  doniinante.  Land  or  jiropcrty  to  which  there  belongs  an  ease- 
ment over  other  properly. 

Predio  seviente.  Land  or  estate  owning  an  easement  to  a  domiiiant 
estate.     Servient  estate. 

Prision.     Imprisonment,  confinement,  seizure. 

Prejudicial.  Requiring  a  i>revious  judicial  decision  before  the  final 
sentence. 

Prelacion.     Preference. 

Prenda.     Pledge. 

Prescripcion.     Prescription,  statute  of  limitations. 

Presentacion.     Presentment. 

Presidio.     Punishment  by  hard  labor,  jail. 

Presidio  mayor.lMajor  and  minor  arrest.  Confinement  for  periods  pro- 
Presidio  menor.J     vided  in  the  penal  code  at  hard  labor. 

Prestamista.     Pawnbroker. 

Prestamo  d  la  gruesa.     Bottomry  loan. 

Presuncion.     Presumption  (legal  or  of  fact). 

Presunto.     Suspected. 

Presupuesto.     Budget  of  state,  estimate. 

Prevision.     Old-age  pension. 

Previsto.     Provided  (for  or  by). 

Probatoria.     Time  allowed  for  producing  evidence. 

Precesado.     The  accused,  defendant. 

Procurador.     Attorney,  attorney  at  law,  solicitor. 

Prociu-ador  fiscal.  Public  attorney  named  by  the  king  to  promote  and 
defend  in  the  supreme  and  superior  courts  the  interests  of  the 
exchequer  and  otlier  ptiblic  causes. 

Prodigo.  A  man  who  by  sentence  of  a  judge  has  been  deprived  of  die 
free  administration  of  his  property  by  reason  of  his  leading  a  dissi- 
pated life.  He  is  put  on  tlie  same  footing  witli  a  lunatic  and  dis- 
qualified from  doing  legal  acts. 

Producto.     Proceeds. 

Profanos.     Persons  outside  of  legal  profession,  laymen. 

Promoter  fiscal.  The  minister  appointed  to  promote  tlie  observance  of 
penal  laws,  or  he  who  in  a  criminal  case  is  named  by  the  judge  to  pre- 
pare and  support  the  accusation  against  tlic  criminal. 

Prontuario.     Compendium  or  digest. 

Propietario.     Proprietor. 

Propriedad  inmueble.     Real  property. 

Propriedad  mueble.     Personal  property. 


l6o  GUIDE   TO   THE   LAW   OF  SPAIN 

Protesta.     Protest  (of  a  bill). 

Protocolo.  A  file  or  archive  of  original  instruments  left  with  the  notarj^ 
the  parties  having  certified  copies  only.     A  registry. 

Protutor.  Vigilant  guardian,  one  appointed  to  see  that  the  guardian 
does  his  duty  and  also  to  represent  the  ward  in  and  out  of  court  when 
his  interests  are  adverse  to  those  of  the  guardian. 

Providencia.     Judicial  decision  referring  to  matters  of  procedure. 

Proyecto.     Bill,  scheme,  design,  plan. 

Proyecto  de  ley.  Bill  (introduced  in  legislative  body),  a  proposed  form 
for  a  statute. 

Prueba.     Evidence,  proof. 

Pueblo.     Town,  people,  nation. 

Puerto.     Port. 

Quiebra.     Bankruptcy. 

Quebrado.     Bankrupt. 

Quebrado  alzado.  A  bankrupt  who  has  fled  from  his  business  address  to 
avoid  creditors. 

Quebrantamiento  de  forma.     Violation  of  form  or  of  a  rule  of  procedure . 

Querella.     The  indictment  or  information  in  criminal  investigations. 

Quinto.  The  one-fifth  part  of  an  estate  which  a  man  can  dispose  of  to 
strangers  by  his  will. 

Quita.     Partial  release  by  creditor. 

Ramo  separado.     Separate  file. 

Rapto.     Abduction. 

Ratero.     Pickpocket. 

Ratificacion.     Ratification. 

Razon  social.  Firm  name  or  the  distinctive  name  of  unlimited  and 
limited  partnerships. 

Real  cedula.  Royal  dispatch  signed  by  the  king  and  issued  by  some 
superior  tribunal,  wherein  some  favor  is  granted  or  some  interlocu- 
tory decree  is  made. 

Rebeldia.  Default,  contempt.  (Used  in  both  civil  and  criminal  mat- 
ters.) 

Rebelion.     Rebellion. 

Recibo.     Receipt. 

Recomendatario.  Referee  in  case  of  need  (used  in  negotiable  instru- 
ments). 

Reconvencion.     Counterclaim. 

Recopilaci6n.     Digest,  compilation. 

Recurso.     Appeal. 

Recusacion.     Challenge,  exception. 

Reembolso.     Reimbursement. 

Refrendar.     To  countersign. 

Regente.  The  chief  justice  of  a  body  composed  of  several  tribunals  in 
combination. 

Regidor.     Alderman  of  a  city. 

Regimen.     Government,  management. 

Registro.     Examination,  act  of  searching,  also  a  register. 

Registro  civil.     The  civil  registry. 


GLOSSARY  l6l 

Rcglamento.  Written  instruction  given  by  a  competent  authority  with- 
out tlie  observance  of  any  peculiar  form;  provision  for  carrying  into 
execution  a  statute  already  enacted. 

Reintegro.     Repayment. 

Reivindicacidn.     Replevin,  recovery. 

Reivindicar.     To  replevj-,  to  recover. 

Relator.  Person  appointed  and  deputed  in  every  appeal  court  to  make 
a  summary  of  facts  of  the  various  cases  for  the  judge. 

Remate.     Auction,  highest  bid  at  auction. 

Remision.     Remitting. 

Remolque.     Towage. 

Renuncia.     Waiver. 

Reo.     Offender,  criminal. 

Reportimiento.     Allotment,  division. 

Repertorio.     Index,  digest. 

Repeticion.     Claim,  action  for  accounting. 

•Replica.     Replication  in  pleading. 

Reponerse.     To  be  annulled. 

Reprension.     Reprimand  (public). 

Represalia.     Reprisal. 

Requerimiento.     A  demand. 

Resarcimiento.     Indemnity'  damages,  compensation. 

Resguardo.     A  receipt,  collateral  security. 

Residencia.  Residence,  also  sometimes  means  place  where  one  lives 
with  certain  constancy. 

Residente.     Resident.     Refers  popularly  to  both  a  vencio  and  domiciliado. 

ResoIuci6n.     Decision,  resolution. 

Responsabilidad.     Liability. 

Retracto.     Right  of  replevying  or  recovering  a  thing  sold  to  another. 

Resultandos.  The  setting  fortii  of  tlie  facts  forming  the  basis  of  the 
judicial  decision. 

Revision.     Review. 

Revocar.     To  revoke. 

Riego.     Irrigation. 

Rifa.     Lotter>'. 

Ritomo.     Renvoi. 

Robe.     Robbery  and  includes  burglary. 

Rdbrica.  A  mark  or  flourish  usually  placed  under  one 's  signature  as  an 
added  obstacle  to  forger)^     [It  is  not  tlie  signature.] 

Sacar  testimonio.     To  make  a  certified  copy. 

Salario.     Wage,  earnings. 

Salario  medio  diario.     Average,  daily  earnings. 

Salvaguardia.     Protection. 

Salvoconducto.     License  or  permission. 

Saneamiento.     Security',  indemnification.     Also  in  administrative  law, 

drainage . 
Sano  de  juicio.     Perfectly  sound  in  mind. 
Sedici6n.     Sedition. 
77:;yi°— 15 11 


1 62  GUIDE   TO   THE    LAW    OF   SPAIN 

Seguro.     Insurance. 

Seguro  dotal.     Endowment  insurance. 

Segtiro  sobre  vida.     Life  insurance. 

Seguro  contra  incendio.     Fire  insurance. 

Seguro  contra  accidentes  (or)  percances.     Accident  insiu-ance. 

Sello.     Seal. 

Senado.     Senate. 

Senador.     Senator. 

Sentencia.     Final  judicial  decision. 

Sentencia  absolutoria.     Judgment  where  request  demanded  is  refused. 

Sentencia  condenatoria.  Decision  in  which  something  is  commanded 
to  be  done  or  enjoined. 

Sentencia  firme.     An  irrevocable  judgment  or  decision. 

Seiioraje  or  senoreaje.     Seigniorage. 

Senorio.     Seigniory. 

Servidumbre.     Easement  both  personal  and  real. 

Sindico.     Assignee,  receiver.  • 

Sin  perjuicio.     Without  prejudice. 

Sisa.     Excise. 

Sobreseimiento.     Dismissal,  discontinuance  (of  legal  proceedings). 

Socio.     Shareholder,  a  partner,  member  of  a  club,  etc. 

Solidariamente .     Severally. 

Subasta.     Judicial  sale  of  goods  by  public  auction. 

Siibdito.     Subject  of  a  country. 

Subsidio.     Subsidy. 

Suceso  incierto.     Contingency. 

Sucesor  inmediato.     The  heir  presumptive,  the  next  succeeding. 

Sueldo.     Salary,  pay  (not  "wages"). 

Suma.     Sum. 

Sumario.  Preliminary  investigation  in  criminal  suits,  similar  to  our 
secret  investigations  by  the  grand  jur>-.     Preparation  for  trial. 

vSumariamente.     Summarily. 

Suplicatorio.  Letters  rogatory,  or  a  writ  or  any  legal  instrument  sent  in 
the  king's  name  by  a  tribunal  or  judge  to  another  of  equal  authority 
that  they  may  attend  to  what  is  solicited. 

Suposici6n.     Bogus  representation. 

Suspension.     Removal  or  suspension  (from  office). 

Sustraccion.     Abduction,  pick  pocket  or  purse  snatching. 

Tabemero.     Saloonkeeper  or  tavcmkeeper. 

Tablon  de  edictos.  Official  bulletin  board  in  the  courthouse  for  adver- 
tising notices. 

Tacha.     Incapacity. 

Talon.     Check,  coupon,  receipt,  bill,  etc. 

Talonario.     A  coupon  or  check-book. 

Tal6n  de  transporte.     Bill  of  lading. 

Tanteo.  Agreement  or  right  to  sell  or  buy  at  same  price  bid  for  by 
others  at  auction. 

Tenedor.     Holder. 

Tener  tacha.     To  be  legally  incapable. 


GLOSSARY  1 63 

Tentativa.     Attempt. 

Tcrceria.     Interlocutory  proceeding.     Arbitration. 

Tercio.     The  tliird  part  of  an  estate  a  testator  can  dispose  of  as  he  pleases 
when  he  leaves  no  descendants,  only  ascendants. 

Terminos  de  gracia.     Days  of  grace. 

Territorio.     Territory. 

Tesorcria.     Treasury. 

Tesorero.     Treasurer. 

Testamento.     A  will. 

Testigo.     Witness. 

Testimonio.     Testimony. 

Titulo.     Title. 

Tontina.     Tontine,  annuity  insurance. 

Trabajo.     Work,  labor. 

Traduccion.     Translation. 

Traicion .     Treason . 

Tramitacion  del  incidente.     Interlocutory  proceeding. 

Trdmite.     Judicial  process. 

Transaccion.     Contract,  compromise,  transaction. 

Transeunte.     Every  person  living  in  a  place  not  a  vecino  or  a  domincili- 
ado,  transient 

Transgresion.     Infringement. 

Transporte  de  viajeros.     Carriage  of  passengers. 

Tratado.     Treatj',  treatise. 

Tribunal.     Court 

Tribunal  de  cuentas.     Exchequer. 

Tribunal  supremo.     Supreme  court 

Tutela.     Guardianship. 

Tutor.     Guardian. 

Uso.     Usage. 

Usurpacion.     Usurpation. 

Valor.     Value. 

Vecindad.     Residence,  right  acquired  by  residing  in  a  place  given  by 

law. 
Vecino.     Native  Spaniard,  sui  juris,  habitually  and  permanently  resid- 
ing in  a  place. 
Vencimiento.     Maturity  (of  a  bill)  sometimes  "vencimiento  de  plazo." 
Vender.     To  sell. 
Venta.     Sale. 

Vinculacion.     Entail,  act  of  entailing. 
Vincular.     To  entail  an  estate. 
Violacion.     Rape. 
Visar.     To  mark  "approved." 
Visto  bueno.     The  mark  or  formula  "approved." 
Vitalicio.     Diu-ing  life. 

Vitalicista.     An  annuitant  or  person  with  an  income  for  life. 
Viuda.     Widow. 
Voto.     Vote. 
Vusion.     Order,  precept. 


INDEX 


Abad,  131. 
Abella: 

Administracion  municipal,  114. 

Arriendos  y  prestamos,  60. 

Beneficiencia,  120. 

Contribucion  territorial,  119. 

Dcrecho  administrativo,  112. 

Derecho  de  cazo.  116. 

El  consultor,  18. 

Expropriacion  forzosa,  58. 

Impuesto,  119. 

Minas,  117- 

Provincial  y  municipal,  113. 

Registro  civil,  54. 
Abrcu: 

Presas  del  mar,  132. 

Tratados  de  pas.  ijo. 
Absence  (Bk.  I,  Civ.  Code).  46. 
Absolutism  and  democracy.  25. 
Acadcmia      real     de      jurisprudencta     y 

legislacion  Catalogo,  9. 
Accession  (Bk.  II,  Civ.  Code),  46. 
Accidents,  125  ff. 
Accounting,  63. 
Acts  of  commerce.  69  ff. 
Adelantado,  136. 
Administrators,  58. 
Administrative  law,  iii  flf: 

Elections,  115. 

Hunting  and  fishing.  116. 

Mines,  116. 

Municipal  and  provincial,  113. 

Poor  laws,  119. 

Public  finance,  118. 

Waters,  115. 
Admiralty,  77  ff. 
Admiralty  courts,  78. 
Adoption  (Bk.  I,  Civ.  Code),  46. 
Adverse  possession  (Bk.  II,  Civ.  Code),  46. 
Agacino,  77. 

Agency  (Bk.  IV,  Civ.  Code),  47. 
Agenc>'.  mercantile,  70. 
Aguilcra  de  Paz,  99. 
Alarcon,  10. 
Alaric.  Code  of,  27. 
Alas,  26. 
Albo,  loS. 

Aleatory  contracts  (Bk.  IV,  Civ.  Code),  47. 
Aleu: 

Aguas,  116. 

Diccionario,  16,  114. 


Alfaro,  89. 

Alfonso  X,  30. 

Aliens,  134  ff. 

Allgemeine  bibliogtaphie,  8. 

Alonso  Martinez,  40. 

Altamira: 

Continental  law,  8,  36. 

Cuestiones  de  historia,  29. 

Cuestiones  preliminares,  37,  44. 

Derecho  consuetudinario,  45. 

Literature  on  legal  history,  36. 

Metodo  positivo,  43. 

Teaching  of  legal  history,  19. 
Alvarado,  21. 
Alvarez  del  Manzano: 

Codigos  de  comercio,  68. 

Derecho  mercantil,  68. 
Amat,  9S. 
Amell,  43, 
Andreu,  115. 
Angulo,  53. 
Antequera.  55. 

Anuario  de  legislacion  y  iurisprudcncia,  11. 
Aparici,  55. 
Apprenticeship,  129. 
Aquilar,  143. 
Arabic  conquest,  29. 
Aragones,  61. 
Aramburu,  107. 
Arbitration: 

Civil  suits,  84. 

Strikes,  127  ff. 
Arce.  54. 

Ardenne  de  Tizac.  135. 
Arenal: 

Beneficiencia.  108. 

Derecho  de  gentes.  132. 

Jurisprudenc  ia,  26,  108. 
Arcvalo,  20. 
Argolla,  92. 
Annas,  99. 
Arrazola,  16. 
Arriaga,  79. 
Asser,  134. 
Asso: 

Fuero  viejo  y  ottos  c6digos,  30,  32. 

Institutes,  50. 
Associations  (Bk.  I,  Civ.  Code),  46. 
Associations,   mercantile   (Bk.    II,    Com. 

Code),  72  ff. 
Audinct,  134. 

165 


1 66 


INDEX 


AumatellTusquets,  125. 
Autos  acordados,  31. 
Aval,  76. 
Average,  77. 
Ayala,  21, 131. 
Ayllon,  78. 
Azcdrate: 

Estudios,  24. 

Historia  de  derecho  de  propiedad.  5.1. 
Legislacion  comparada,  24. 
Self-government,  11 1. 
Balmes,  22. 
Bank,  Mortgage,  72. 
Bank  of  Spain,  64,  71. 
Banking  law,  71  ff. 
Bankruptcy  (Bk.  IV,  Com.  Code),  64,  65, 

79  ff. 
Banks  (Bk.  II,  Com.  Code),  65. 
Bar  Associations,  19. 

Catalogues  of  libraries,  8,  9. 
Barrachina: 

Derecho  foral,  44. 
Derecho  hipotacario,  62. 
Barrio.  67. 
Barriobero: 
Juris,  17. 

PMctica  forenre,  06,  99. 
Berabo,  Max,  108. 
Benefit  societies,  127. 
Benito: 

Cimaras  de  comercio,  83. 
Derecho  mercantil,  69. 
Letra  de  cambio,  76. 
Mandato  mercantil,  70. 
Sociedades  mercantiles,  73. 
Tribunales  de  comercio,  82. 
Bamaldo  de  Quiros: 

Derecho  usual,  8,  iS,  121. 
Theories  of  criminaUty,  102,  106. 
Various,  108. 
Berne  convention,  55. 
Bibliography,  7  ff. 
Bills  and  notes  (Bk.  II,  Com.  Code).  65, 

76  ff. 
Bills  of  lading,  74. 
Blanco  Constans,  68. 
Blanco  de  la  Vina,  ro4. 
Bias: 

Derecho  civil  Aragonds,  42. 
Municipal  y  Provincial,  113, 
Bluutschli,  133. 
Boards  of  trade,  68,  70  ff. 
Bolsas  de  comercio,  70  ff. 
Bonel,  44. 
Bonilia,  68. 
Borchard: 

Bibliography,  8. 

Indemnity  for  errors  of  criminal  jus- 
tice, 103. 


Bosco,  107. 

Bottomry,  77. 

Boundry  lines  (Bk.  II,  Civ.  Code),  46. 

Bourbons,  34. 

Bourne,  136. 

Brauchitsch,  36. 

Bravo,  J..  94. 

Bravo  Molto: 

Comumcaciones,  75. 
Ley  del  jurado.  100. 
Organizacion  judicial.  88. 
Breviary,  27. 
Brissaud,  139. 
Broca,  43. 

Broker,  maritime,  79. 
Brokers.  70. 

Brussels  conventions,  78. 
Buitrago.  140. 
Buron.  51. 
Buylla.  122. 
Caballero  y  Montes,  88. 
Cabamis,  22. 
Cabello: 

Leyes  de  minas,  117. 
Soberania,  142. 
Cabrerizo,  105. 
Cadalso: 

Diccionario.  94- 
Penitenciarios,  108. 
Cadena,  141. 
Calabuig,  51. 
Calderon: 

Filosofia,  24. 
Nonados,  24. 
Prolegomenos.  24. 
Calvo,  49. 

Camaras  de  comercio,  82  ff. 
Campomanes,  21. 
Campos,  140. 
Canals,  116. 
Canon  law,  139  ff* 
Cantillo,  130. 
Capdeville.  71. 
Capital  punishment,  102. 
Cardenas,  52. 
Carpena,  107. 
Carpentier,  56. 
Carrera,  117. 
Carreras,  69- 

Carriers  (Bk.  II,  Com.  Code).  65,  73  ff. 
Casa  de  la  Contratacion,  136. 
Casteyon,  43- 
Castillejo,  59- 
Castillo,  56. 
Castro: 

Diplomatico  gnia,  133. 
Expulsion,  135. 
Nacionalidad,  135. 
Catald,  125. 


INDEX 


167 


Ctbatios,  21. 

Censos,  60. 

Centralblalt  fiir  Rcchtswissenschaft,  8. 

Chambers  of  commerce,  etc.,  64,  82  ff. 

Chapado  Garcia,  37. 

Cliativct,  129. 

Chct|iu*.  77. 

Child  labor  laws,  139  £f. 

Civil  Code: 

Commentaries,  49  ff. 

Contents,  45. 

Editions,  48. 

Foral  systems,  42. 

History*,  38  ff. 

Individual  parts,  52  ff. 

Related  subjects,  52  ff. 

Translations,  47. 

Treatises,  50. 
Clearing  Houses,  64,  73. 
Clemente  de  Diego: 

Apuntes  de  derecho  civil,  51,  59. 

Derecho  usual,  18,  121. 

Re  vista,  17. 

Transmibilidad  de  obligaciones,  59. 
Clunct,  135. 
Cobian,  135. 
Code  of  Alaric,  27. 
Code  comraission,  39. 
Codex  legum,  28. 
Coinage,  118. 
Colegio  de  notariados,  89. 
Colegios  de  abogados,  8,  9,  19. 
Collisions,  77. 
Colmeiro.  no. 
Colonial  law,  136. 
Colonies,  136, 
Comas: 

Proyecto  de  reforma,  50. 

Revision  del  codigo  civil,  49. 
Comision  de  reformas  socialcs,  120. 
Commandite  company,  73  ff. 
Commerce  (Bk.  I,  Com.  Code),  64. 
Commercial  associations,  73  £f. 
Commercial  code: 

Contents,  64. 

General  literature,  65. 
Commentaries.  67. 
Editions,  66. 
Individual  parts,  69  ff. 
Related  subjects.  69  ff. 
Translations,  65. 
Treatises,  68. 

History,  63. 
Commercial  congress,  82,  83. 
Commercial  courts.  Si  ff. 
Commercial  laws  of  the  world,  The,  64,  65, 

87.  125- 

CommcrciaIpersons(Bk.I,Com.Code),64. 

Commercial  treaties.  Sj. 


Commission,  code,  39. 
Commission  to  revise  laws.  35  ff. 
Compania  anonimo.  73  ff. 
Compania  colectiva.  72  ff. 
Compania  en  comandita,  72  ff. 
Comparative  law,  24  ff. 
Comparative  Law  Bulletin: 

Bibliography.  8. 

Legislation,  12. 
Compensation  act,  123  ff. 
Concurrence  (Bk.  IV,  Civ.  Code),  47. 
Condc  y  Luque: 

Derecho  int.  privado,  134. 

Nacionalidad,  135. 
Conditional  sentence.  102. 
Conflict  of  laws,  133  ff. 
Conjugal  comraimity  (Bk.  IV,  Civ.  Code), 

47- 
Conrat  (Cohn),  27. 
Consejo  de  familia,  52  ff. 
Conscjo  real  de  Castilla,  13. 
Consejo  supremo  de  guerra  y  marina.  104. 
Constitutional  law,  109  ff. 
Constitutional  movement,  22. 
Consular  law.  79. 
Contentious  -  administrative     jurisdiction. 

13,  88.  112. 
Contentious  jurisdiction,  84  ff. 
Continental  legal  history  series,  36. 
Contracts   (Bk.   IV,  Civ.  Code;    Bk.   II. 

Com.  Code),  47.  59  ff.,  64,  68. 
Cooper,  S. 
Copyrights,  55  ff. 
Coroleu,  43. 
Corporate  agreements  (Bk.  II,  Com.  Code), 

64. 
Corporations  (Bk.  I,  Civ.  Code).  46,  68. 
Corporations,  business  (Bk.  II,  Cora.  Code). 

72  ff. 
Correo,  74,  75. 
Costa: 

Derecho  consuetudinario.  45. 

Estudios,  24. 

Heclio  juridico,  24. 

Ignorancia  de  derecho,  24. 

Libertad  civil,  42, 

Municipal,  113. 

Notariado.  90. 

Vida  de  derecho,  24. 
Costs.  84,  91  ff. 
Court  reports,  12  ff. 
Courts,  87  ff. 

Courts,  administrative.  88, 
Courts,  industrial,  127. 
Courts,  military,  103  ff. 
Courts,  municipal,  88. 
Courts,  naval,  103  ff. 
Creditors,  64.  79  ff. 
Criminal  law,  92  ff. 


1 68 


INDEX 


Criminal  law,  militaty,  103  ff. 
Criminal  law  reforms,  92,  xo6  ff. 
Criminal  procedure,  97. 
Criminology,  106. 
Cuello,  96. 
Curry,  11 1. 
Customary  law,  42  ff. 
Dato: 

Giorgi,  59. 

Jurisprudenda,  14,  15. 
Debates  in  Senado,  40. 
Del&rde,  124. 
De  Leon,  47. 
Delitos,  93. 
Depieges,  98,  loi. 
Deposit  (Bk.  IV,  Civ.  Code),  47. 
Derecho  foral,  33,  42  ff. 
Derecho  politico,  109  ff. 
Descent  of  property  (Bk.  Ill,  Civ.  Code), 

46,58ff. 
Desertion,  of  diildren,  96- 
Designs,  56. 

Diaz  de  Montalvo,  30  IT. 
Diaz  Moreno,  62. 
Dictionaries,  15  ff. 
Diez  Enriquez,  52. 
Divorce  (Bk.  I,  Civ.  Code).  46. 
Dodd,  109. 

Domicile  (Bk.  I,  Civ.  Code),  46. 
Dominguez-Alfonso,  99. 
Donoso  Cortes,  22. 
Dorado  Monteso: 

Antropologia  criminal,  106. 

Bases  para  derecho  penal,  106. 

Crimiiiologia,  107. 

Kl  derecho,  25. 

Nuevo  derecho  penal,  25. 

Xuevos  derroteros  penales,  106. 

Psi  cologia,  107. 

Valor  social  de  leyes,  25. 
Dramatic  works,  55. 
Du  Boys,  92. 
Due  compensation,  57. 
Durdn  y  Bas,  43. 

Easements  (Bk.  II.  Civ.  Code),  46. 
Ecclesiastical  law,  139  ff. 
Education,  legal,  19. 
Elections,  115. 

Emancipation  (Bk.  I,  Civ.  Code),  46, 
Eminent  domain,  57  ff.,  112, 
Emphyteusis,  60. 
Employers'  liability  act,  123  ff. 
Encyclopedias,  15  ff. 
Encyclopedists,  French,  21. 
Entailment  of  estates,  54. 
Escosura: 

Guia  notarial,  90. 

Legislacion  hipotecaria,  62. 
Escriche,  15. 
Esmein,  99. 


Especulo  (Espejo),  EI.,  31. 
Espiga,  39. 
Espiritu,  66. 
Estasen: 

Accidentes  de  trabajo,  125. 

Aval,  77. 

Cuentas  corrientas,  70. 

Derecho  industrial,  56. 

Derecho  maritimo,  78. 

Institutiones,  68. 

Jurisprudencia  mercantil,  67. 

Los  Seguros.  76. 

Sociedades  mercantiles,  73. 

Suspensiones  de  pagos.So. 

Viajante  de  comercio,  70. 
Eurie,  27  ff. 

Evidence,  87  ff.,  97,  100. 
Executors,  58. 
Expert  testimony,  100. 
Expropriation,  forcible,  57. 
Extradition,  97,  135. 
Fabie,  138. 
Factors,  68,  70. 
Falcon,  44. 
Faltas,  93. 

Family  council  (Bk.  I,  Civ.  Code),  46,  52 ff. 
Farms,  loans  on,  62. 
Fees,  91  ff.: 

Court,  84. 

Mortgage,  61. 

Notary,  84. 
Felonies,  93. 
Femdndez  Giner,  54. 
Femdndez  Martin,  137. 
Fernandez  Prida: 

Derecho  int.  privado,  134. 

Estudios,  133. 
Ferreiro  Lago,  52. 
Feneres.  142. 
Fern,  108. 
Fenocarriles,  73  ff. 
Filiation  (Bk.  I,  Civ,  Code),  46,  52  ff. 
Fiore,  133, 134. 
Fishing  laws,  116. 
Florez  Estrada,  22. 
Floridablanca,  22. 
Foral  law,  33.42  ff- 
Foreign  corporations,  135 
Foreign  litigants,  91,  92. 
Foreigners,  134  ff. 
Foros,  60. 
Forroella,  45. 
Formn  judicmn,  2S. 
Foucher,  66. 
Foye: 

Caminos  dc  hicrra,  75. 

Contrato  dc  Iransportc,  75. 
Franco  y  Lopez,  42. 
Fraternal  organizations,  136. 


INDEX 


169 


Fuero  juzgo,  aS  £f.,  35. 
Fuero  real,  30,  35. 
Fucro  viejo,  30,  35. 
Fuzicr-Hennan,  16. 
Gaceta  de  JIadrid,  10,  13, 
Galindez  de  Carvajol,  33. 
Galindo,  62. 
Gallostra,  89. 
Game  laws,  116. 
Garcds,  74. 
Garcia  Goycna,  39. 
Garcia  Herreros,  59. 
Garcia  Aloreno: 
Codigo  civil,  48. 
Cod i go  de  comercio,  67. 
Instituciones  politicas,  17. 
Garcia  Romero,  loi. 
Gascon: 

Extradicion,  135. 
Servicios  publicos,  114. 
General  works,  15  ff. 
Germanic  influence,  27  ff. 
Gestoso: 

Derccho  int.,  1^. 
Dercchoint.  privado,  134. 
Gifts  (Bk.  III.  Civ.  Code),  46. 
GilMaestre,  108. 
Gil  y  Pablos,  72. 
Gil  y  Robles: 

Absolutismo,  25. 
Derecho  politico,  25,  no, 
Metodologia  juridica,  25.. 
Giner  de  los  Rios: 
Estudios,  23,  III. 
Filosofia.  24. 
La  persona  social,  23. 
Prolegomenos,  24. 
Ginds  de  Sepulveda.  21. 
Giorgi.  59' 
Giralt,  115. 
Glossary,  143. 
Gmelin,  in. 

Godinez,  78.  ^ 

Golmayo,  140. 
Gomez  Chaix,  82. 
Gomez  Herrero,  12. 
Gomez  Salazar: 

Derecho  canonico,  139. 
Procedimientos  ecclesiasticos,  141. 
Gongora,  9,  18. 
Gonzalez,  A.,  109. 
Gonzalez  de  Alba,  102. 
Gonzalez  Alvarez,  75,  89. 
Gonzalez  Cedron,  118. 
Gonzdlez  de  las  Cuevas,  75. 
Gonzalez  Hontoria,  56. 
Gonzalez  de  Linares,  45. 
Gonzales  Maroto: 
Pcsca,  116. 
Tribunalcsdc  tuariua,  78. 


Gonzdiez  Naudin,  103. 
Gonzalez  Rebollar,  125. 
Gonziilez  RcviUa: 

Derecho  mcrcantil,  69. 

Hipoteca  naval,  78. 

Manual  naval,  78. 
Gorosacal,  39, 
Goths,  27  ff. 
Gracian,  21. 
Grain,  61. 
Grand  jur>',  lor. 
Groizard,  95. 
Groimd  rents,  60. 
Gual  Villalbi,  69. 

Guaranty  (Bk.  U,  Com.  Code),  65. 
Guardia,  137. 

Guardianship  (Bk.  I,  Civ.  Code),  46. 52  ff. 
Gutierrez-Can  as,  86. 
Gutierrez  Fernandez,  92. 
Gutierrez,  Francisco,  75. 
Gutierrez-Gamero,  122,  129. 
Gutidrrez-Jimdnez,  S8. 
Habeas  corpus,  102. 
Habitation  (Bk.  IL  Civ.  Code).  46. 
Hacienda  pnblica,  nSff. 
Hacnel,  27. 

Handelsgesetze  des  Erdballs,  65. 
Hapsburg  period,  34. 
Hartwig.  93. 
Harvey,  87- 
Hermur  Espinosa,  17. 
Hemdndez  Pinteno,  irS. 
Herrero  Martinez,  99. 
Hidalgo  Garcia,  95. 
Hijos  de  Reus,  9,  18. 
Hill,  136. 
Hinojosa: 

Estudios,  37. 

Germanische  element,  27. 

Historia  general,  37. 

Influencia,  108. 
Hipoteca,  60  ff. 
Hipoteca,  naval.  64,  77  ff. 
History',  legal,  26  ff. 
Huguct,  76. 
Hunting  laws,  116. 
Industrial  courts,  127  ff. 
Industrial  property,  55  ff.,  112. 
Infants,  52  ff. 
Infants'  contracts,  59. 
Inquisition,  The,  141. 
Insanity,  defense  of.  100. 
Insolvency  (Bk.  IV,  Com.  Code),  65. 
Instituto  de  I bero- Americano,  36. 
Instituto  nacional  de  prevision.  126. 
Instituto  de  reformas  sociales,  120  ff. 
Instrumcntos  publicos,  8g. 
Insurance  (Bk.  II,  Com.  Code),  75  ff.: 

Accident.  123  ff. 
Industrial,  76. 


lyo 


INDEX 


Insurance— Continued. 

Fire.  75. 

Land  transportation,  75* 

Life,  75. 

Maritime,  77. 

Old-age,  127. 

Sickness,  126. 

"Workmen,  123  ff. 
Intellectual  property,  55  ff.,  112. 
International  law: 

Public  int.  law,  130  ff. 

Conflict  of  laws,  133  ff. 
Intestate  succession  (Bk.  Ill, Civ.  Code), 46. 
Irrigation,  115. 
Isabella,  33. 
Jacobs,  77. 
Janer,  130. 
Jeronimo  Feijo,  22. 
Joint  owners  (Bk.  II,  Civ.  Code),  46. 
Johnston,  50. 
Jovellanos.  21. 
Judicial  decisions,  13  ff. 
Judiciary  act,  83,  87  ff.,  97. 
Juicios  arbitrales,  84. 
Juris.  17- 

Jurisprudence.  19  ff. 
Jurisprudencia,  12  ff.,  iq  ff. 
Jurisprudencia  del  Dia,  La,  14. 
Jiu*y.  97,  100  ff. 
Justinian  law,  33. 
Kindasvinth,  28. 
Kirchevheim,  8. 
Kulemann.  128. 
Labor  contract,  121. 
Labor  disputes,  127  ff. 
Labor  legislation,  120  ff. 
Labor  organizations,  128  ff. 
Labra: 

Cuestiones.  138. 

Instituto  de  der.  int.,  131. 

Reforma  politica,  138. 
La  Coste,  58. 
La  Fuente.  141. 
Laget,  L.  and  V.,  94- 
Land  registration,  119. 
Landa,  132. 
Lands,  colonial,  139. 
Lands,  waste.  63. 
Langle,  Rubio,  96. 
La  Publicidad,  33. 
Lastres: 

Actos  de  comercio,  70, 

Filiadon.  52. 

Foreign  corporations,  135. 

Matrimonio,  52. 

Operadones  de  bolsa,  71. 

Penitenciarios.  108. 

Procedimientos.  86,  99. 

Tutcta  y  consejo  de  famiUa.  52. 
Law  reviews,  17. 


Law  schools,  19. 
Lawyers,  19. 
Lea.  118. 
Leases.  60. 

Leases,  contract  of  (Bk.  IV,  Civ.  Code).  47, 
Lecanda.  43. 
Legal  education,  19. 
Legal  history,  26  ff. 
Leger,  134. 
Legislation,  9  ff. 
Lehr,  50. 
Leve,  38,  48. 

Lex  romana  visigothorum,  27. 
Lex  wisigothorum,  28. 
Ley  hipotecaria.  60  ff. 
Leyes  del  estilo.  31. 
Leyes  de  Indias,  34,  136,  137. 
Leyes  nuevas,  31. 
Liber  gothonmi,  28. 
Liber  judicum,  28. 
Libro  de  las  leyes,  32  ff. 
Limitations,  statute  of  (Bk.  IV,  Civ.  Code; 
Bk.  IV,  Com.  Code)  47, 65, 81, 100  (crimes). 
Linares,  113. 
Literary  property.  55  ff. 
Llamas,  33. 

Lianas  Aguilaniedo,  108. 
Loans  (Bk.  IV.  Civ.  Code;  Bk.  II,  Com. 

Code),  47,  60,  65. 
Loans  on  real  estate.  72. 
Lobingier: 

Breach  of  promise,  52. 

Fuero  juzgo,  29 

Siete  partidas,  32. 

Spanish  object  lesson  in  code  mak- 
ing, 38. 
Lombroso,  107. 
Lopez,  F.,  128. 
Lopez,  G..  32. 
Lopez.  Infantes,  100. 
Lopez  de  Lago,  43- 
Lopez  Medina.  116. 
Lopez  Mofan,  45. 
Lopez  Moreno,  86,  99. 
Lopez  Nunez: 

Infaucia,  126, 

Prevision,  129 
Lopez  de  la  Osa,  45. 
Lopez  Pdlaez,  140. 
Lulio.  20. 

Majority  (Bk.  I,  Civ.  Code),  46. 
Malloy's  Treaties.  83,  131,  135. 
Maluquer  y  Salvador,  79. 
Maluquer  y  Viladot,  71. 
Manavarro,  17. 
Manjon,  140. 
Manresa: 

Comentarios  al  codigo  civil.  49. 

Comeiitarios    a  la  ley  enjuiciamiento 
civil.  85 


INDEX 


171 


Manrichalar,  30, 38. 
Manriquc.  30,  38. 
Manuel  y  Rodrisruez: 

I'uero  viejo  y  otros  codigos,  30,  32. 

Institutes,  50. 
Maps,  55. 
Maran6n: 

Collections  of  laws.  18. 

Hacienda  pnblica,  118. 

Leyes  admjnistrativas,  in. 

Leyes  civiles,  48,  66. 

Lcycs  notariales,  90. 

Leyes  penales,  94,  98,  104. 
Marfa,  99. 

Maria  combrouero,  39. 
Mariana,  20. 
Marin,  132. 

Maritime  int.  law,  79,  133. 
Maritimelaw(Bk.III,Com.Code),65.77fr. 
Maritime  mortgage,  64,  77  ff. 
Market-overt,  70. 
Marriage  (Bk.  I,  Civ.  Code),  46,  $2  ff.,  141. 

142. 
Marvaud,  121. 
Martin-Gamero,  75. 
Jfartinez  Acacio,  52. 
Martinez  Alcubilla: 

Codigos  antiguos,  35. 

Codigo  civil,  48. 

Diccionario,  16,  112. 
Martinez  Marina: 

Ensayo  historico.  30,  37. 

Teoria  dc  los  cortes.  21. 
Martinez  Moreda: 

Diccionario.  16. 

Legislacion  hipotecaria,  63. 
Martinez  Ruiz,  107. 
Martorell,  80. 
Mas,  141. 
Mascarell,  128. 
Maura: 

Legislacion  foral,  44. 

Propiedad  de  personas  juridicas,  55. 
Maurtua,  138. 
Medina  FcmAndez,  121. 
Medina,  L.: 

Collection  of  laws,  iS. 

Hacienda  piiblica,  118. 

Leyes  administrativas,  11  r. 

Leyes  civiles,  48,  66. 

Leyes  notariales,  90. 

Leyes  penales,  94,  98,  104. 
Mejora,  58. 
Melgar,  58. 
Melgares  Marin,  141. 
Mendezde  Vigo,  nS. 
Mentez,  45. 

Mercantile  register,  64,  69. 
Merchants  marine,  63. 


Merchants,  68. 
Methodology,  25. 
^I  iguel  Moreno,  86. 
Military'  criminal  law,  103  ff. 
Military  service.  105. 
Minana  y  Villagrasa: 

Codigos  dc  coraercios,  68. 

Codigo  de  comercio  espanol,  69. 
Minerals  (Bk.  IL  Civ.  Code).  46. 
Mines,  112,  116  ff. 
Minors,  52  ff. 
Miracle  de  Carbonell,  141. 
Misdemeanors,  93. 
Models,  56. 
Montero,  71. 
Jfontes,  107. 
Mora,  77. 

Morales  y  Alonso,  140. 
Morales  y  Gomez,  43. 
Moreno  y  Lorenzo,  78,  105. 
Moret,  I30. 

Mortgage  bank,  64,  72. 
Mortgage,  maritime,  64. 
Mortgages,  60  ff. 
Mortmain,  54. 
Moses,  136. 
Moslem  rule,  29. 
Mout6n: 

Diccionario,  44* 

Ferrocarriles,  74. 
Miihibrecht.  8. 

Municipal  administration,  113  ff. 
Municipal  justice,  law  of,  87. 
Murillo,  137. 
Musical  works,  55. 
Mutual  benefit  societies,  127. 
Narregui,  43. 
Nationality.  134. 
Naval  courts,  103  ff. 
Negotiable    instniments   (Bk.    11,    Com. 

Code),  6s,  76  ff. 
Negrin.  79,  133  • 

NeoKantian  pliilosophy  of  law,  26. 
Nido: 

Accidentes  de  trabajo,  126. 

Justicia  militar,  104. 
Noguer.  7:;. 
Nogui?s,  80. 

Noncontcntious  jurisdiction,  84  ff 
Nonresident  litigants,  91. 
Notarial  law,  89  ff. 
Notary  public,  89  ff. 
Novarro  Flores,  26. 
Novisima  recopilacion,  31,  34  ff. 
Novoa,  90. 

Nueva  recopilacion,  31,  33  ff. 
Nys,  131. 

Obligations  (Bk.  IV, Civ. Code).  46. 47,  59  ff . 
Odriozola,  62, 


172 


INDEX 


Olivart: 

Bibliographic.  131. 

Derecho  int.  publico,  133. 

Revista  de  der.  int.,  133. 

Treaties,  83,  130. 
Oliver  Estellar.  62. 
Oliver  Rodriguez,  16. 
Olmeda,  132. 

Ordenamiento  de  Alcald,  30,  32. 
Ordenamiento  real,  33,  35. 
Ordenanza  de  Bilbao,  31,63. 
Ordenanza  de  Castilla,  31. 
Orti  y  Lara,  23 
Otero,  59- 
Ouwerx,  77. 

Ownership  (Bk.  II.  Civ.  Code).  46. 
Oyuelos: 

Accidentes  de  trabajo,  126. 

Association  for  legal  protection  of  labor- 
ers, 122. 
Pacheco: 

Codigo  penal,  95. 

Comentarios  de  las  leyes  de  Toro,  3^. 

Jurado,  loi. 
Paintings,  55. 
Panto  ja: 

Jurisprudencia  adm..  15. 

Jurisprudencia  dvil,  14. 

Jurisprudencia  criminal,  15. 
Paraphema  (Bk.  IV,  Civ.  Code),  47. 
Parcel  post,  73. 
Parent  and  child  (Bk.  I,  Civ.  Code),  46, 

52  ff. 
Parral,  42. 
Parreno,  78- 
Partidas,  siete,  31  ff,  35. 
Partnership  (Bk.   IV.  Civ.  Code;  Bk.  II, 

Com.  Code),  47.  64,  72  ff. 
Passengers,  73. 
Pastor  y  Bustos.  67. 
Patents.  55  ff.  83- 

Paternity  (Bk.  I,  Civ.  Code),  46,  52  ff- 
Ped  regal: 

Consuetudinario  Derecho,  45. 

Municipal  Derecho,  113. 
Ped  ret,  16. 
Pella: 

Los  fueros  de  Cataluna,  43. 

Patentes,  57. 
Pelhcer,  i8. 
Penal  code,  92  ff. 
Penichet,  54. 

Penitenciaria,  revista,  108. 
Pensions,  105,  127. 
Peral,  ii8. 

Periodicals,  legal,  17. 
Perkins,  121. 

Persons  (Bk.  I,  Civ.  Code),  46,  52  ff- 
Pessina,  96. 
Philip  II.  33. 


Philosophy  of  law,  19  fif, 
Piemas  Hurtado: 

Consuetudinario,  45. 

Hacienda  piibUca,  118. 
Piemas  y  de  Tineo,  58. 
Pi  poll.  43- 
Piquer,  104. 

Pledge  (Bk.  IV.  Civ.  Code),  47. 
Pons,  III. 
Poor  laws,  119,  120. 
Port  of  refuge,  77. 
Ports,  112. 
Posada; 

Derecho  administrativo,  110,  112. 

Derecho  politico,  no. 

Derecho  politico  comparado,  no. 

Derecho  usual,  8,  iS,  121. 

Guia,  no. 

Jurisprudence,  26. 

Regimen  local,  114. 

Spanisches  staatsrecht,  in. 
Possession  (Bk.  II,  Civ.  Code).  46. 
Prats.  118. 
Precedents,  12. 

Preference  (Bk.  IV,  Civ.  Code),  47. 
Prescription  (Bk.  IV,  Civ.  Code;  Bk.  IV, 

Cora.  Code),  47,  65. 
Press,  Association  of  the.  55. 
Probation,  102. 
Procedure: 

Bankruptcy,  80. 

Civil,  83  ff. 

Commercial  cases,  84. 

Criminal,  97  £f. 

Ecclesiastical  courts,  86. 

Mihtary  courts.  86.  103  ff. 

Senado  Trials.  86. 
Property  (Bk.  II,  Civ. Code),  46,  54  ff. 
Property,  registration,  119. 
Protection  of  industrial  prizes,  56. 
Provincial  administration,  113. 
Prudhomme,  66. 
PubUc  charities,  112. 
PubUc  law,  109  ff. 
Pubhc  service  companies  (Bk.  II,  Cora. 

Code),  6s,  73  ff. 
Public  works.  112. 
Puig  Martinez,  128. 
Purchase  of  foreign  ships,  63. 
Puyol,  123. 
Quasi  contracts  (Bk.  IV,  Civ.  Code),  47, 

59  ff- 
Raikes,  77. 

Railroad  police  regulations.  73  ff. 
Railways  (Bk.  II,  Com.  Code),  65,  73  ff., 

112. 
Ramella,  57. 
Ramos: 

Contratos  de  mcnorcs,  53.  59 
Crcdito  agricolo.  72. 


INDEX 


173 


Ramos— Continued . 

I^cKisIaciun.  11. 

Prenda  agrieola,  62. 

Sucesiones,  58. 
Recopilacioa  de  Indias.  136,  137. 
Recopilacion,  novismia,  31, 34  ff. 
Recopilacion,  nueva,  31,  33  ff. 
Recording  of  property,  119. 
R.  D.  V.,98. 
Redoiido,  Si. 

Reforms  of  criminal  law.  92.  106  ff. 
Registra tion of  property  (Bk.  II,  Civ.  Code), 

46, iig. 
Registry  (Bk.  I,  Com.  Code).  64,  68. 
Registry  of  civil  status  (Bk.  I,  Civ.  Code), 

46.  54- 
Relatives.  maintenance  of  (Bk.    I,   Civ. 

Code),  46,  53  ff. 
Rcmolque,  78. 
Renaissance,  20. 

Rents  (Bk.  IV.  Civ.  Code).  47.  60. 
Reus,  86. 

Revista  de  derecho  intemacional,  133. 
Revista  de  derecho  privado,  8,  17. 
Revista  general  de  legislacion  y  jurispru- 

dencia,  8.  11,  13,  17. 
Revista  de  los  tribunales,  11,  14,  17. 
Ribera  Canizares,  54. 
Rios,  C,  56. 
Rios  Umiti.  26. 
Riquelme,  132. 
Rives: 

Acreedores.  Si,  86. 

Enjuiciamiento  civil,  85. 

Juzgados  munici  pales,  88. 
Rodriguez,  A.,  88. 
Rodriguez  Jimdnez,  104. 
Rodriguez  Martin,  114. 
Rodriguez  Pinilla,  loi. 
Rodriguez  San  Pedro,  137. 
Rodriguez  Serra,  19. 
Roman  rule,  27. 
Romero  y  Delgado,  90. 
Romero  y  Giron,  17. 
Romero  Villanueva,  105. 
Roscher,  136. 
Rossello,  57. 
Rovira,  96. 

Royo  ViUanovas,  112. 
Rubira,  134. 
Ruiz  y  Gil,  78. 
Ruiz  (Max  Bembo),  108. 
Saavedra  Fajardo,  21. 
Saenz-Hurmua.  15. 
Sainz  de  Andino,  63. 
Saiz  y  Gomez,  102. 
Salillas,  108,  123. 
Sanchez  y  Jimenez,  116. 


Sanchez  de  Ocana: 

Census,  60. 

Jurado,  loi. 

Justicia  militar,  104. 

Minera,  117. 

Organizacion  judicial,  88. 
Sanchez  Roman,  40,  50  ff.,  59. 
San  Isidoro,  20. 
Santamaria  de  Paredes: 

Derecho  administrativo,  iia. 

Derecho  consuetudinario.  45. 

Derecho  politico,  no. 

Jurisprudence,  36. 
Sanz  y  Caminalo,  115. 
Sanz  y  Escarta,  123. 
Sanz  del  Rio,  23. 
Sastre,  75. 
Scaevola: 

Codigo  civil  comentado.  49. 

Jurisprudencia,  51. 
Schmidt,  8.  37,  50. 
Schofield,  103. 
Schools,  law,  19. 
Scott: 

Criminal  law,  93. 

Penal  code,  93. 

Siete  partidas,  32. 

Visigothic  code,  29. 
Security  (Bk.  IV,  Civ.  Code).  47. 
Sela,  18,  121. 
Sempere.  37. 

Sentence,  suspended,  102. 
Sentencias,  13  ff. 
Septenario,  31. 
Serrano,  4';. 

Ser\'ice  of  judicial  process,  91. 
Servitudes  (Bk.  II.  Civ.  Code),  46. 
Shipping  (Bk.  Ill,  Com.  Code),  65. 
Shipwrecks,  77. 
Sickness  insurance,  126. 
Siete  partidas,  31  ff. 
Silvela.  F..  40. 
Silvela,  L.,  95. 
Silvela.  Loring,  S6,  99. 
Simancas,  121. 
Singer,  56. 
Smith,  136. 
Society  of  authors,  55. 
Soler.  18. 
Solozano,  138. 
Soriano,  45. 
Soto,  D..  131. 
Soto  y  Hernandez.  55, 
Status,  civil  (Bk.  I,  Civ.  Code),  46,  54. 
Statuteof  limitations,  47, 65. 81.  loo(crimes). 
Stock  exchanges,  68,  70  ff. 
Stocquart,  52. 
Strikes,  128. 
Suarez,  F.,  20,  131. 


174 


INDEX 


Suarez,  Victoriano,  o. 

Succession  of  property  (Bk.  Ill,  Civ.  Code), 

46,  s8  ff. 
Sucesiones  (Bk.  III.  Civ.  Code),  46,  58  ff. 
Sumario  (Bk.  II,  Crim.  proc.)  97,  101  ff. 
Sunday  labor  law,  129. 
Support  of  relatives  (Bk.  I,  Civ.  Code),  46, 

52  ff. 
Supreme  court,  12. 
Supercargoes,  77. 
Suspended  sentence,  102. 
Suspension  of  payment  (Bk.   IV,    Com. 

Code),  6s.  79  ff. 
Tapia,  78. 
Tariffs,  irSff. 
Taxes,  iiSff. 
Telegraph,  73,83. 
Telephone,  73. 
Teofilo,  67. 
Testamentary    succession    (Bk.  III.  Civ. 

Code),  46. 
Theurault,  98. 
Tickets,  r.  r.,  73. 
Torino,  74. 

Torre  y  lyquierdo,  91. 
Torres  y  Aguilar,  38. 
Torres  Ballastc,  16. 
Torres  Campos: 

Bibliografia,  7. 

Derechoint.  privado,  134. 

Derechoint.  publico,  133. 

Foreigners,  134. 

Pena  de  mueste,  102. 

Staatsrecht,  iii. 
Towage,  78. 
Trade-marks,  55  ff.,  83. 
Trade  names,  56,  68. 
Tranvias,  74  ff. 
Trapaga: 

Justicia  militar,  104. 

Servicio  militar,  105. 
Traveling  salesmen,  70. 
Treaties,  130  ff. 
Trias,  42. 

Tribunal  supremo,  r2. 
Tridon,  140. 
Ubiema,  112. 
Ugate,  88. 
Uiia,  12S. 
Unamuno,  45. 
Unfair  competition,  56. 
Unions,  labor,  128. 


Universal  conventions,  83. 
Urena: 

Historia  de  la  literature  juridica,  7,  30. 

La  influencia  semita,  29. 
Use  (Bk.  II.  Civ.  Code),  46. 
Useful  models,  56. 
Usufruct  (Bk.  II,  Civ.  Code).  46. 
Valdes  Rubio,  96. 
Vall^s,  70. 
Valverde,  51. 
V.  A.  AI.  SI. 
Varon  y  Caballero,  108. 
Vazquez  y  Lopez,  141. 
Vazquez  Manchaca,  ai. 
Verdegay,  75. 
Vcrdier.  98,  101. 
Viada,  95. 
Viceroy,  136, 
Vila  Serra: 

Collection  of  laws,  iS. 

Hacienda  pubhca,  118. 

Hipotacarios,  61. 

Trabajo,  122. 
ViUa.  118. 

Vallalobos  Lopez,  58. 
Villa  y  Peralta.  53. 
Villar  Grangel,  113. 
Vipegon,  loi. 
Visigoths,  27. 
Vitoria,  20.  131. 
Vives.  20. 

Voluntary  jurisdiction,  84  ff. 
Von  Thot,  92. 
Walls,  135. 
Walton: 

Civil  code.  47. 

Civil  law,  36,  50,  109.  137. 

Leyes  comerciales,  66. 
War.  rights  of.  130  ff. 
Waters  (Bk.  II,  Civ.  Code),  46. 112, 115  ff. 
Westlake.  132. 
White,  119,  139. 
Widows,  105. 
Wills.  58  ff..  r4i. 
Women,  53.  96,  129. 
Workmen's  compensation  act,  123  ff. 
Workmen's  insurance,  uj  ff. 
Yanguas,  43. 
Zaragoza.  88. 
Zarzoso,  90. 
Zeumer,  29. 
Zurita.  Nieto.  70. 


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